Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01775
RAYE, Acting P. J.A jury found defendant Julio Ceasar Calderon guilty of committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) Sentenced to six years in state prison, defendant appeals. He contends the trial court erred in admitting evidence of his prior sexual conduct and challenges the constitutionality of Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 318 (concerning prior statements of witnesses). We affirm.
BACKGROUND
The victim, J.L., was seven years old at the time of the offense and eight years old at the time of trial. His mother had been dating a relative of defendant and, on one occasion, J.L. spent three days and two nights at defendant’s home.
About a week later, J.L. was playing with a friend and they were touching each other’s groins. The friend’s mother informed J.L.’s mother of the incident. J.L.’s mother asked J.L. if anyone had ever touched him in his private area, and J.L. replied that defendant had.
J.L. was interviewed about the incident 10 days later. He told the interviewer that something happened inside his grandpa’s house that “wasn’t okay,” but he did not remember what it was. The bad thing happened when he was asleep on the couch. He had his “[d]ay clothes” on and something happened to his body. An old grown-up man with white hair and a mustache touched him by putting his hand under J.L.’s underwear. J.L. pushed the man’s hand away. J.L. thought it was his grandfather who had touched him. A video recording of this interview was played for the jury.
The following day, Detective Brian Shortz spoke to J.L., who told the detective that a man had touched his crotch when he was at his “Grandpa’s” house. J.L. identified defendant in a “six-pack” photographic line-up as the man who had touched him. Both J.L. and his mother stated that J.L. referred to defendant as his “grandpa” even though they were not related. An audio tape of this interview was played for the jury.
At trial, J.L. stated that something “not okay” happened while he was sleeping on the couch at defendant’s house, but responded that he did not know or he forgot to questions regarding precisely what had occurred.
Over defendant’s objection, the prosecution also presented testimony from Joshua G., who was defendant’s nephew by marriage. Joshua testified about an incident that occurred in 1993 when he was 10 years old. Joshua, his sister, two of his cousins, defendant, and defendant’s wife were at defendant’s house watching a movie. Joshua’s sister was eating a Popsicle and Joshua laughed at her because he thought it resembled “oral copulation.” Defendant ordered Joshua to go into the bathroom and followed him there.
Once defendant and Joshua were in the bathroom, defendant locked the door and scolded him, telling Joshua he should not speak like that because it was disrespectful to defendant’s wife. Defendant then stated that if Joshua, his male cousin, and defendant later “wanted to masturbate, we can.” Defendant then cupped Joshua’s genitals and massaged then in an up-and-down motion. Joshua told defendant, “Don’t do that.” Defendant said, “Okay. I respect that.” The two then returned to the living room. Joshua was 13 years old when he testified at defendant’s trial in 1997. Defendant was acquitted of the charge relating to that incident.
Defendant testified on his own behalf. He acknowledged that J.L. had spent the night in his home during the period in question but denied touching J.L. in a sexual way. Defendant also denied touching Joshua in a sexual way, stating he had simply scolded him when they were in the bathroom. Defendant’s wife testified that J.L. had slept on the floor, not on the couch, and that defendant was never alone with J.L.
DISCUSSION
I
Defendant argues that the court abused its discretion and violated his due process rights by admitting evidence of his prior sexual misconduct under Evidence Code sections 1108 and 352. With respect to his due process argument, defendant concedes that the California Supreme Court, in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), has held that section 1108 does not violate due process. He nevertheless raises this claim to preserve it for federal review. We are bound by the California Supreme Court’s decision in Falsetta and consequently reject his claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
All further statutory references are to the Evidence Code.
We also reject defendant’s claim that the trial court abused its discretion under section 352 by admitting Joshua G.’s testimony regarding defendant’s prior sexual offense.
Evidence of prior criminal conduct is generally inadmissible to show that the defendant has a propensity or disposition to commit those acts. (§ 1101, subd. (a).) However, the Legislature created exceptions to the general rule where the uncharged acts involve sexual offenses or domestic violence. (§§ 1108, 1109.) By its express language, section 1108 requires the court to engage in the weighing process under section 352 before admitting propensity evidence. (§ 1108, subd. (a); Falsetta, supra, 21 Cal.4th at p. 917.) In this weighing process, the court must consider factors such as relevance, similarity to the charged offense, the certainty of commission, remoteness, and the likelihood of distracting or inflaming the jury. (Falsetta, at p. 917.) We review a challenge to admission of prior bad acts under section 352 for abuse of discretion and will reverse only if the trial court’s ruling was “‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’” (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
Prior to trial, the prosecution filed a motion in limine seeking to admit evidence of three prior acts of child molestation allegedly committed by defendant against three separate victims in 1993 and 1995. The prosecution later withdrew its request regarding two of the victims and proceeded with the motion only with respect to Joshua G. The evidence before the court at the hearing was essentially the same as was ultimately presented at trial.
The trial court ruled as follows: “... I have considered the matter at least with regard to Joshua. With regard to both the 1101(b) evidence for purposes of intent and 1108 evidence for purposes of propensity, it does seem to the Court that the evidence with regard to Joshua is probative on both 1101(b) and 1108 for 1101(b) and 1108 purposes.
“The issue really did boil down to the 352 analysis. I think when I was doing the assessment and analysis last week when I first received your papers I got through the 1101(b) and 1108 issues relatively quickly because I don’t’ think they are particularly difficult. I did think the 352 analysis was particularly difficult and I particularly thought that at the time I was thinking about [the two other victims the prosecution elected not to proceed with in its motion] as well. I thought it was less difficult with regard to Joshua, and I thought it was less difficult with regard to Joshua because I didn’t think the jury would be put in a position of having their passions inflamed by conduct that was less egregious than the conduct that is currently alleged.
“I think with regard to the confusion issue there is [an] issue there, but the Court can address that issue with specific instructions to the jury.
The court had previously indicated that the jury might be confused because defendant had been acquitted of the prior charges but could be instructed that it was only deciding the instant case and could not substitute its judgment for that of the jury in the prior case.
“I thought with regard to time, it’s no doubt additional time is going to be necessary to present the evidence and the testimony of Joshua but that is not a basis by itself for excluding evidence that is of a probative nature.
“I thought with regard to remoteness the case was not so remote and, in fact, the substantial similarity actually balanced out any potential remoteness and the Branch case talks about that particular issue.
Branch, supra, 91 Cal.App.4th 274.
“In addition to that, Ewoldt, which is the additional type of analysis which is used here, involved very similar time frames, and in the Ewoldt case we are talking about conduct that was alleged to be 12 years old.
People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt).
“And, lastly, with regard to the issue of probativeness, the evidence is clearly probative, it assists the jury in actually weighing credibility of the witnesses and in the end it’s not so prejudicial, based on all of the reasons I’ve already given, that it outweighs that probative value. So I am going to allow the testimony of Joshua to be presented.”
Here, the trial court carefully considered the evidence and supported its ruling with a detailed, lengthy explanation. The charged offense and the prior offense both involved touching young boys of approximately the same age, violating a position of trust, taking advantage of an opportunity to commit the offenses, and similar conduct. Thus, the prior offense evidence was probative to show defendant has a propensity to commit such unlawful sexual acts, and is therefore probative on the issue of whether defendant committed the charged sexual offense.
Moreover, the prior offense was less egregious than the charged offense. Where the testimony describing the uncharged acts is no more inflammatory than the testimony describing the charged acts, the potential for prejudice is decreased. (Ewoldt, supra, 7 Cal.4th at p. 405.) There was little likelihood of the jury’s confusing the issues since the prior offense occurred over 10 years earlier, there was no overlap of evidence, and the offenses involved different victims. Nor was the evidence of the prior offense unduly time consuming, since it took only 18 pages of the reporter’s transcript. Finally, although defendant was not convicted of the prior offense, the court indicated the jury could be instructed that it was only deciding the instant case and could not substitute its judgment for the jury in the previous case.
The trial court’s conclusion that probative value outweighed prejudice was neither arbitrary, capricious, nor patently absurd. We find no abuse by the trial court in admitting the challenged evidence under section 352.
Finally, to the extent defendant asserts that CALCRIM No. 1191, the instruction relating to the use of evidence of uncharged sex offenses, violates due process by allowing the jury to convict based solely on disposition testimony, he failed to clearly articulate it, failed to set forth any such argument under a separate heading, and failed to present any legal analysis of the law underlying the instruction. Thus, any such argument has been forfeited. (See, e.g., People v. Baniqued (2000) 85 Cal.App.4th 13, 29; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.)
In any event, in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, the California Supreme Court approved the nearly identical predecessor instruction, CALJIC No. 2.50.01. As we concluded in People v. Cromp (2007) 153 Cal.App.4th 476, 480, there is no material difference between CALCRIM No. 1191 and the older CALJIC No. 2.50.01, and the analysis in Reliford applies with equal force to the CALCRIM instruction.
II
Defendant is also challenging the legality of CALCRIM No. 318, which was provided to the jury.
CALCRIM No. 318 advises the jury that statements made by a witness before the trial may be used in two ways: to evaluate the witness’s credibility and as evidence that the information in the earlier statements is true. Defendant argues that the second use permitted by CALCRIM No. 318 creates an improper presumption that a witness’s unsworn, out-of-court statements are both true and deserving of greater belief than statements made in court under penalty of perjury. He contends this unfairly lessens the prosecution’s burden of proof and denies him due process and a jury trial.
As read to the jury, CALCRIM No. 318 provided: “You have heard evidence of a statement that a witness made before the trial. If you decide that the witness made that statement, you may use that statement in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in that earlier statement is true.”
We disagree with defendant that the instruction creates such an improper presumption. As we have previously held, CALCRIM No. 318 accurately states the law. (People v. Golde (2008) 163 Cal.App.4th 101, 119-120.) It does not compel the jury to use the statement in either of the two stated ways -- it simply conveys that these are the two purposes for which a witness’s pretrial statements may be considered by the jury. The instruction creates no presumption of truthfulness, nor does it suggest in any way how much weight such statements deserve in comparison with sworn testimony. We find nothing about the instruction that lessens the prosecution’s burden of proof.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.