Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR220895
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
William John Coates (defendant) appeals his conviction of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)), and committing a lewd act upon a 14-year-old child (Pen. Code, § 288, subd. (c)(1)). In a bifurcated proceeding the court also found true an allegation that defendant had a prior strike conviction. (Pen. Code, §§ 1170.12, subds. (a)–(d); 667, subd. (b).) The court denied a motion to strike the prior conviction, and sentenced defendant to 24 years in prison.
Defendant contends: (1) the court abused its discretion by admitting expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS); (2) evidence Code section 1108 is unconstitutional on its face and as applied: (3) the court abused its discretion by admitting evidence of similar uncharged conduct, and the admission of this evidence resulted in a due process violation; (4) in violation of his federal constitutional right to due process, CALJIC Nos. 2.50.01, 2.50.1 and 2.50.2 permit the jury to find defendant guilty based upon a fact not proven beyond a reasonable doubt; (5) the trial court abused its discretion by denying defendant’s motion to strike his prior conviction; and (6) the no contact order should be modified or stricken because the victim is now 18.
All subsequent statutory references are to the Evidence Code unless otherwise indicated.
We shall find no error, and shall affirm the judgment.
Facts
The minor victim, B.G, was born in 1990. During the period in which the offenses were committed, defendant was married to B.G.’s grandmother (Grandmother). While growing, up B.G spent many nights and afternoons after school at Grandmother’s house.
In December 2003, when B.G. was 13 years old, defendant fondled B.G.’s breast while she was lying on a couch and Grandmother was not present. B.G. could not remember whether this was the first time defendant touched her inappropriately because it happened so often. He did other things that she was uncomfortable with, such as getting very close and patting her “butt” and commenting on her bra size.
Defendant often gave B.G. back massages, but when he did, if no one else was present, his hands would “find its way to [her] breast or to [her] butt.” She estimated that defendant did this more than 10 times but less than 20. She also recalled another specific occasion in 2004 when she complained that her cheerleading activity was making her “butt” hurt. Although she had asked defendant not to rub her butt he did so anyway.
The last time defendant molested B.G. was when she was 14, in November 2004, just before Thanksgiving. Defendant started giving B.G. a back massage in the kitchen. B.G. said she wanted to lie down, so they moved to the living room. When B.G. lay down, defendant massaged her back and then moved to her breasts and buttocks. He put his hands underneath her bra, and made skin to skin contact with her breasts. When Grandmother came into the room and asked, “What are you doing, Bill?” defendant stopped, and B.G. got up.
B.G. did not tell anyone about the molestation because she did not want to break her family apart. She was also afraid of how it would affect her grandmother. On different occasions, Grandmother and B.G.’s mother had asked her if anyone had touched her inappropriately. B.G. lied when she told them no one had. After the November 2004 incident she did tell a friend, and the friend’s mother told B.G.’s mother. B.G.’s mother and father then told Grandmother that defendant had been molesting B.G., and had B.G. report the problem to a school resource officer. Although Grandmother initially was not cooperative, she explained that she was “confused and shocked.” Grandmother later gave the police a statement, and separated from defendant after 27 years of marriage.
Grandmother testified that she was aware of the defendant’s prior child molestation conviction. After that conviction, defendant was placed on probation, and they both went to counseling, where she learned about signs of child abuse. B.G.’s mother was also aware of the prior conviction, and Grandmother promised that she would not leave B.G. alone with defendant. Grandmother also told B.G. not to let anyone touch her inappropriately, and not to “sit on her grandpa’s lap.” When B.G. was at Grandmother’s house, Grandmother was with B.G 95 to 99 percent of the time.
L.A., who was 38 at the time of trial, testified that as a child she spent a lot of time with Grandmother, who is her cousin, and defendant. In 1982 or 1983, when L.A. was 11 years old, she spent the night sleeping on a couch at their house. Defendant came in and started kissing her and touching her breast. She was “paralyzed with fear.” Defendant put his tongue all over L.A.’s face, ears and chest, licking her down to her waist. He did this for about 15 minutes, and then suddenly stopped.
L.A. did not tell anyone because she had heard her mother say that Grandmother was finally happy and had married a good man, and L.A. did not want to be responsible for taking that away from Grandmother. Four years later L.A. came forward when her mother came home, very upset, saying that another cousin, J.P., had accused defendant of touching her inappropriately. Until L.A. came forward, everyone believed that J.P. was lying. After L.A. told her family about what defendant had done, her family stopped associating with these relatives, and L.P never met B.G.
J.P. was 29 at the time of trial. Grandmother was her aunt. When J.P. was approximately nine years old, she was staying with Grandmother and defendant. When Grandmother was in the bathtub, defendant touched J.P.’s vagina with his fingers. This happened more than once. J.P. reported this conduct to her third grade teacher. J.P. did have contact with her cousin B.G., but did not tell B.G. that defendant had molested her until she learned, in November 2004, that defendant had molested B.G.
Dr. Urquiza, an expert on CSAAS, explained that CSAAS was originally described in an article for therapists of sexually abused children, to dispel misconceptions about child abuse and describe and explain common paradoxical behavior. He testified that CSAAS is an “educational tool to assist treatment,” and that it is improper to use it to determine whether a child has been abused, or to determine whether a person is the perpetrator. He testified that the five components of CSAAS are: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction.
Secrecy involves some type of direct or indirect coercion or intimidation that keeps a child from reporting abuse. He explained that the source of coercion or intimidation often arises out of the type of relationship the child has with the abuser, who, contrary to popular belief, is not typically a stranger, but rather is “somebody with whom they have an ongoing relationship.” The coercion may take the form of a direct threat, but can also be indirect. The perpetrator may be “bigger or stronger and more in a position of authority,” or the child may have witnessed the perpetrator exert power or use force over someone else close to them, and be afraid to make the perpetrator angry. The child may also love the perpetrator and believe the perpetrator or the child will get in trouble if the child reports the abuse.
The helplessness component dispels the misconception that a child will run from, or avoid, a perpetrator. The perpetrator often occupies a position of trust and has control over the child’s life and may be responsible for the child’s welfare. The child is usually smaller, younger and weaker. Entrapment describes how the child is “stuck” because the child believes he or she cannot tell anyone and cannot do anything to stop it. Accommodation describes the ways a child will cope with the experience of being sexually abused. One way is for the child to disassociate from the unpleasant feeling arising from the abuse so the child can “continue in this experience that they have no control over.” If a child learns to cope with the experience they may sustain the relationship with the abuser even though the relationship exposes the child to further the abuse. The child believes he has no choice, and to do otherwise risks that others will discover the abuse.
The delayed and unconvincing disclosure component dispels the misconception that an abused child will promptly report the abuse. Delayed reporting is common, and the unconvincing disclosure element describes the common pattern of “vague and undescriptive” statements or inconsistent or differing statements. The retraction component describes recanting of allegations because of fear, threats, or for other reasons.
Dr. Urquiza also testified that he knew nothing about the particular facts of this case, and had no opinion on the issue of guilt, which he emphasized was a question only for the jury to decide.
For the defense, defendant’s daughter-in-law testified that, until November 2004, B.G. was at Grandmother’s and defendant’s house more often than she was at home. From the age of 10 until Thanksgiving 2004, B.G. constantly badgered defendant for backrubs.
Analysis
I.
Admission of Expert Testimony on CSAAS
Defendant contends that the court abused its discretion by admitting expert testimony on CSAAS because: (1) defendant did not challenge B.G.’s credibility based upon behavior or misconceptions that expert testimony about CSAAS would explain and therefore this evidence was irrelevant; (2) Dr. Urquiza’s testimony was not limited to addressing specific misconceptions relevant to this case; (3) the expert testimony improperly invited the jury to draw the conclusion that B.G. had been molested based upon behavior consistent with CSAAS; and (4) the probative value of this expert testimony was outweighed by the prejudicial effect, and therefore the court should have excluded it pursuant to section 352.
Expert testimony regarding CSAAS is “admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [¶] Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to the paradoxical behavior.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)
Defendant’s contention that the court should have excluded the CSAAS evidence as irrelevant is premised upon the incorrect assertion that he did not place B.G.’s credibility in issue based upon paradoxical behavior. The record is to the contrary: Defense counsel elicited B.G.’s testimony that before she finally reported the molestation, her mother and grandmother asked her whether anyone had touched her inappropriately and she did not tell them what defendant had been doing. Defense counsel also elicited B.G.’s testimony that after the molestation began she continued her relationship with defendant, and even asked him to give her backrubs. Defense counsel also called defendant’s daughter-in-law to testify that B.G. constantly “badgered” defendant to give her backrubs. In closing argument, defense counsel relied on the foregoing testimony to argue that B.G was not credible “[b]ecause a person doesn’t go back to a person who has molested them and ask them to molest them again.” He also urged the jury to find her not credible because, rather than take the opportunity to disclose the molestation when her grandmother and mother asked whether anyone had touched her inappropriately, she lied to them and told them no one had. Dr. Urquiza’s testimony regarding secrecy and delayed reporting and unconvincing disclosures was therefore highly relevant and admissible to dispel the myth that a child would immediately report abuse. His testimony regarding the components of helplessness, and entrapment and accommodation, was also admissible to dispel the misconception that an abused child would naturally avoid contact with her abuser, and to explain why and how an abused child might engage in the apparently paradoxical behavior of continuing a relationship with her abuser. (See, e.g., People v. Housley (1992) 6 Cal.App.4th 947, 955 [expert testimony on CSAAS was properly admitted to aid the jury in its assessment of the victim’s delay in reporting the abuse and her last-minute recantation of the charges].)
Nor does the record support defendant’s assertion that Dr. Urquiza’s testimony was not narrowly tailored to the purpose for which it was admissible. (See People v. Bowker (1988) 203 Cal.App.3d 385, 393-394 [to counteract the risk that a jury will improperly use CSAAS testimony to determine whether victim was molested “the evidence must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence”].) Dr. Urquiza did describe all five components of CSAAS, but only one of them, retraction, was not relevant to the issues in the case. To the extent reference to this component was overbroad, it was harmless because Dr. Urquiza did not elaborate on that component. His testimony instead focused primarily on the four components that were relevant to the jury’s assessment of B.G.’s credibility, i.e., secrecy, helplessness, entrapment and accommodation, and delayed and unconvincing reporting.
It is improper for an expert testifying on CSAAS to provide “testimony which recites either the facts of the case at trial or obviously similar facts,” because such testimony can too easily be misunderstood by the jury as an invitation to use the CSAAS testimony to determine whether the victim was molested, or as offering an expert opinion that the victim is credible. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384.) “[T]the line between impermissible use of expert testimony to prove the child was abused, and permissible use of such testimony to ‘ “explain the emotional antecedents of abused children’s seemingly self-impeaching behavior . . . .” ’ [citation] is by no means a bright one[;] the better practice is to limit the expert’s testimony to observations concerning the behavior of abused children as a class and to avoid testimony which recites either the facts of the case at trial or obviously similar facts.” (Id. at pp. 1383-1384.) Defendant asserts that Dr. Urquiza’s testimony crossed this line. Yet, in each of the examples defendant cites, defendant failed to interpose any objection, and the CSAAS testimony was, in any event, sufficiently general to avoid being misused or misunderstood by the jury to determine whether she had, in fact, been molested.
In the first example defendant cites, Dr. Urquiza testified that the perpetrator “is usually bigger or stronger and more in a position of authority than the child, who is . . . smaller, younger and weaker.” Defendant argues that this testimony crossed the line because B.G was in fact smaller and weaker than defendant, and defendant, as her step-grandfather, held a position of authority over her. Defendant, however, did not interpose an objection, and even if he had, we would find this testimony to be unobjectionable because it is only generically applicable to the facts of any case involving continuous child sexual abuse. Dr. Urquiza made this statement in the context of explaining why an abused child will keep the abuse a secret, to illustrate the point that the abuse typically takes place in the context of a relationship with a person the child knows, and that the relationship may itself be a source of coercion. The examples of coercion he gave ranged from a direct threat, to more indirect coercion consisting of a sense of intimidation the child may have, based upon observation of how the abuser interacts with others. He also noted that the source of coercion can arise from positive reinforcement such as bribes, or from conflicting feelings of love for, and desire to protect, the abuser. Viewed in that context, the example Dr. Urquiza gave, that the abuser may also be physically stronger and hold a position of authority, was not likely be misunderstood or misused by the jury as an indication that B.G. had in fact been abused by defendant. (See People v. Harlan (1990) 222 Cal.App.3d 439, 450 [in context of explaining delayed disclosure, expert testimony was not improper simply because expert gave example that child will often not disclose until a crisis occurs, such as a divorce, despite the fact that child in that particular case had disclosed abuse during a divorce].)
Dr. Urquiza noted that contrary to popular misconception, an abuser is not usually a stranger. He was careful, however, not to state that the abuser is typically a relative, which, had a timely objection been interposed, might have come too close to mirroring the facts of this case. Instead he testified that the abuser is “not likely to be a total stranger,” and that more typically, “children are sexually abused by somebody with whom they have an ongoing relationship.” In context, it was clear that the point of this testimony was not to suggest that because defendant was B.G.’s relative it was more likely that he was her abuser. Instead, it was to make the more general point that the source of coercion need not be a direct threat, but may instead be perceived by the child in the context of an ongoing relationship with the abuser.
For similar reasons, we are not persuaded that the other examples defendant cites crossed the line to become improper testimony mirroring the facts of this case. Defendant objects to Dr. Urquiza’s testimony that one reason disclosure may be delayed is that the “person who is molesting you” could be “a person you might normally . . . disclose to.” He points out that defendant, as B.G.’s step-grandfather, would fall into the category of a person to whom she would normally disclose that she was being abused. Defendant also objects to Dr. Urquiza’s testimony, in the context of explaining entrapment and accommodation, that children devise ways to cope and dissociate. He argues this testimony too closely mirrored the facts of the case because B.G. “did not fight back, and was enduring and accommodating.” Again we note that defendant did not make any contemporaneous objection. In any event, we find that in neither case did Dr. Urquiza’s testimony veer from the proper description of common behavior of abused children as a class, to an improper factually specific description of the victim’s behavior in this case. In each of the foregoing excerpts, we are persuaded that what defendant characterizes as objectionable linking of the CSAAS testimony to the specific facts of this case is, when read in context, nothing more than the minimal factual connection between these general behaviors, and the paradoxical behavior of B.G. that made CSAAS testimony relevant and admissible.
We also note that the court sustained a timely objection when Dr. Urquiza’s testimony did venture beyond general discussion of the components of CSAAS into more specific factual examples that were too closely related to the facts of the case. For example, in the context of discussing the component of delayed reporting and disclosure, the court sustained a defense objection when Dr. Urquiza began to discuss a recent study quantifying how long it typically took for an abused child to report the abuse, and confined his testimony to simply conveying the more general principle that delays are common.
Moreover, no reasonable juror would interpret Dr. Urquiza’s testimony as an expression of opinion as to B.G.’s credibility, or on the question whether she had been molested, because Dr. Urquiza testified that he had never met the victim, was unfamiliar with the facts of the case, and that he did not have, and it would not be proper for him to have, an opinion on the question whether the victim was molested. He also explained how CSAAS is sometimes abused by prosecutors to prove abuse, and emphatically stated that this use is incorrect. (See People v. Housley, supra, 6 Cal.App.4th at pp. 955-956 [expert’s testimony that he had never met victim, and was unfamiliar with particular facts of case, rendered it unlikely that jury would consider CSAAS testimony for improper purpose].)
Finally, any danger that the jury might apply the components of CSAAS to conclude that the victim has been molested simply because she displays some of the behaviors addressed by the five components was also eliminated by instructing the jury that “the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d. 385, 394.) The court in this case gave the jury standard instructions so limiting the use to which it could put the CSAAS evidence.
The court also acted within its discretion by declining defendant’s request to exclude the CSAAS evidence pursuant to section 352, and the admission of this evidence did not violate defendant’s due process rights. As we have explained, the CSAAS evidence was relevant and admissible because B.G.’s credibility was in issue based upon her paradoxical behavior, consisting of initial denial of abuse, delayed disclosure, and actively initiating continued contact with her abuser. The court was within its discretion to conclude that the potential prejudice defendant identified, consisting of risk that the expert testimony would be misunderstood as an expert opinion or scientifically compelled conclusion that abuse had occurred, could be adequately addressed by appropriate limiting instructions, which it gave. Both the prosecutor and the defense counsel also reminded the jury in closing argument that CSAAS testimony should not be used to determine whether the victim was in fact molested. The prosecutor’s argument relied on the CSAAS testimony only for the proper purpose of responding to defense attacks on B.G.’s credibility based upon paradoxical behavior.
II.
Admission of Prior Sexual Misconduct Pursuant to Section 1108
Defendant next contends that section 1108 is unconstitutional on its face and as applied, and that the trial court abused its discretion by admitting the evidence of the prior uncharged acts involving L.A. and J.P.
Procedural Background
Defendant objected to the prosecutor’s motion in limine pursuant to section 1108 to permit introduction of defendant’s uncharged sexual conduct involving three victims, L.A., J.P., and T.H., on the grounds that the admission of this evidence would violate defendant’s due process rights, and asked the court to exclude the evidence pursuant to section 352.
The court ruled that section 1108 did not violate defendant’s due process rights. It excluded the evidence concerning T.H. pursuant to section 352, but allowed the prosecutor to introduce the evidence concerning L.A and J.P. The court reasoned that the conduct involving L.A. and J.P. was not too remote, and it involved “similar behavior” that was “not horribly worse” than the charged offenses. It further noted that because defendant had been punished for the uncharged offenses involving L.A. and J.P., there was no risk that the jury would believe he had gotten “away with something.” The court excluded evidence of the conduct involving T.H. that had not resulted in a prosecution and conviction on the ground that it was cumulative and “remote in time.”
Facial Challenge to Constitutionality of Section 1108
Defendant raises his due process challenge to section 1108 only to preserve it for possible review in the federal courts. He acknowledges that the California Supreme Court, in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), considered and rejected the contention that section 1108 violates state or federal constitutional principles of due process protection. More recently, in People v. Wilson (2008) 44 Cal.4th 758 (Wilson), the court rejected a defendant’s invitation “to reconsider the correctness” of its holding in Falsetta. (Wilson, at p. 797.) In Wilson, the court reaffirmed the reasoning of Falsetta that “although evidence of a criminal’s propensity had long been excluded in this state, such ‘long-standing practice does not necessarily reflect a fundamental, unalterable principle embodied in the Constitution’ [citation], that a rule permitting admission of such evidence does not offend those fundamental due process principles [citation], and that ‘the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from [the] defendant’s due process challenge.’ [Citation.]” (Wilson, at p. 797.)
This court is bound by our state Supreme Court’s ruling in Falsetta, supra,21 Cal.4th 903and Wilson, supra, 44 Cal.4th 758 . We therefore summarily reject defendant’s contention that section 1108 is unconstitutional on its face. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Failure to Exclude Evidence of Uncharged Sexual Acts Pursuant to Section 352
The trial court, when considering the admissibility of prior sexual conduct pursuant to section 1108, “must engage in a careful weighing process under section 352. 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.” (Falsetta, supra, 21 Cal.4th at p. 917.)
Defendant argues that, in addition to excluding the evidence concerning T.H., the court should have excluded the evidence concerning L.A. and J.P, because it was “exceedingly inflammatory” and too remote. The court was within its discretion to conclude, instead, that the conduct involving L.A. and J.P. was not particularly inflammatory relative to the charged offenses. Although the contact with L.A. and J.P was more explicit and unambiguously sexual than the contact underlying the current charged offenses, both the charged and uncharged offenses involved sexual contact with minor girls. In both the charged and uncharged offenses, defendant touched a minor girl in private areas, while she was staying at the house he shared with his wife, when his wife was not present. Each of the victims was a relative of defendant’s wife, and defendant held a position of trust in relation to them. The similarity of the prior offenses increased their probative value in proving defendant’s propensity to commit the charged offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch).) This evidence was also highly probative and admissible on the issue of intent pursuant to section 1101, subdivision (b).
The uncharged offenses involving L.A. occurred in 1983, and the offenses involving J.P. occurred in 1987. There is no “bright line rule” as to when an uncharged offense is too remote. (See People v. Harris (1998) 60 Cal.App.4th 727, 739.) The courts have allowed evidence of uncharged sex offenses committed as much as 30 years earlier. (Branch, supra,91 Cal.App.4th at pp. 284-285.) In deciding whether the uncharged conduct is too remote, the court may consider whether the defendant has since led a blameless life, because if he has, the prior conduct is arguably less probative on the issue of propensity and intent. (Ibid. [in addition to having since lived a “blameless life,” a “substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses”].) Here, in addition to the evidence involving L.A. and J.P., the prosecutor sought to introduce evidence involving T.H. that began in 1988 and continued through 1992, just eight years prior to the charged offense, and was repeated again in 2002 when T.H. was 20 years old. The prosecutor urged the court to allow evidence of uncharged conduct involving all three victims because it showed “continuous conduct” that did not end with the convictions for molesting L.A. and J.P. Although the court ultimately excluded the evidence involving T.H. on the ground, among others, that it was cumulative, the court could reasonably consider this pattern as a factor in weighing whether the conduct involving L.A. and J.P. was too remote, and was within its discretion to conclude that the conduct involving L.A. and J.P. was not too remote.
The court also stated the conduct involving T.H. was “remote in time,” which is puzzling because much of the conduct involving T.H. occurred during the same period or more recently than the conduct involving L.A. and J.P. It is possible that the court misspoke, and that it meant instead to refer to fact that conduct involving T.H. was not sufficiently similar to balance out the remoteness factor, because T.H. was not a relative, and was much older when the most recent conduct occurred, and defendant had not been convicted for conduct involving T.H.
Moreover, in Branch, supra, 91 Cal.App.4th 274, the court held remoteness, as a factor weighing against admission of uncharged conduct, may be “balanced out” by the increased probative value arising out of the degree of similarity between uncharged offenses and the charged offenses. In Branch, the court upheld a trial court’s decision to admit uncharged conduct that had occurred approximately 30 years earlier because, “the prior offenses and the current offenses were remarkably similar. As noted by the trial court, [Branch] first molested a 12-year-old stepdaughter, then a 12-year-old step-great-granddaughter. Moreover, [Branch] took advantage of the fact that each victim was staying in his home when the molestations took place. Further, in an evident attempt to shield himself from being found out, he lied and told each victim’s principal female caretaker that the victim had recently done something wrong. In sum, the substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses.” (Id. at p. 285; see also People v. Walker (2006) 139 Cal.App.4th 782, 807; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [similarities between 23-year-old rape conviction and charged offense balanced out the remoteness of uncharged rape]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395.) The offenses involving L.A. and J.P. bore at least the same degree of similarity to the charged offenses as in Branch.
Another factor minimizing any prejudice and weighing in favor of admission of this evidence was that defendant was prosecuted and convicted for the offenses involving L.A. and J.P. “If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ ” (Branch, supra, 91 Cal.App.4th at p. 284.) Those risks were not present here because defendant was convicted of the offenses involving J.P. and L.A.
Based upon the foregoing factors, the court was within its discretion to find that evidence of defendant’s prior sexual misconduct involving J.P. and LA. was highly probative on the issue of intent and propensity, that the offenses were neither particularly inflammatory, nor too remote, and admission of this evidence would not confuse the jury or involve undue consumption of time, and to conclude the probative value of this evidence outweighed the danger of undue prejudice.
As Applied Challenge to Section 1108
Defendant also contends that, even if not unconstitutional on its face, section 1108, as applied in this case, violated his due process rights to a fair trial. This argument is closely related to the foregoing analysis concluding that the court properly exercised its discretion under section 352, because, the court, in Falsetta, supra, 21 Cal.4th at p. 917, held that “the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from [the] defendant’s due process challenge.” “To show a violation of due process, a defendant must show that the statute, as applied, offended a principle of justice so rooted in the traditions and consciousness of the country that it is considered fundamental.” (People v. Manning (2008) 165 Cal.App.4th 870, 877.) Where, as here, the court properly exercised its discretion under section 352, it is difficult to conceive of how application of section 1108 could have violated any such fundamental principle of due process.
To the extent defendant argues that application of section 1108 violated due process because it allows the jury to draw an inference of propensity from the evidence of the prior sexual acts, the decision in Falsetta is dispositive. The court held that although it was “unclear whether the rule against ‘propensity’ evidence in sex offense cases should be deemed a fundamental historical principle of justice . . . [¶] . . . even if the rule were deemed fundamental from a historical perspective, . . . in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.” (Falsetta, supra, 21 Cal.4th at pp. 914-915.)
Defendant also argues that the application of section 1108 violated his due process rights because the court in this case failed to limit the use of evidence of uncharged sexual misconduct to drawing an inference of propensity. He suggests the jury therefore could have relied upon the prior sexual misconduct as direct evidence that he committed the charged offenses against B.G. even if it found the evidence did not establish beyond a reasonable doubt he was guilty of the charged offense. The record does not support this contention. The court instructed the jury on the limited purpose for which the prior uncharged conduct could be considered, and specifically informed the jury that the prosecutor had the burden of proving the charged offenses beyond a reasonable doubt. Consistent with these instructions, the prosecutor’s argument asked the jury only to draw an inference of “disposition,” and an inference regarding intent. The prosecutor also explicitly reminded the jury that the evidence of prior sexual conduct alone was insufficient to prove the charged offenses and that the People still had to prove what happened to B.G. beyond a reasonable doubt.
We separately address defendant’s contention that the standard instruction the court gave permit a finding of guilt based upon a fact not proved beyond a reasonable doubt in section III, post.
We therefore conclude that section 1108, as applied in this case, did not violate defendant’s state or federal due process rights.
III.
CALJIC Nos. 2.50.01, 2.50.1, 2.50.2
With respect to the evidence of uncharged sex offenses, the court gave CALJIC Nos. 2.50.01, 2.50.1 and 2.50.2. Defendant contends that these instructions could be understood to permit the jury to convict him based solely upon the evidence of the uncharged offenses, and to make the finding of guilt based upon a preponderance of evidence rather than proof beyond a reasonable doubt, in violation of the due process clause of the California and United States Constitutions.
The trial court instructed the jury pursuant to CALJIC No. 2.50.01 as follows: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶ . . . ¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime, or crimes, of which he is accused. [¶] . . . [¶] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes.”
The California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford) rejected the same contention with respect to the 1999 version of CALJIC No. 2.50.01. The Court held that “the 1999 version of CALJIC No. 2.50.01 correctly states the law” (Reliford, at p. 1009), and rejected the suggestion that the instruction was likely to mislead the jury regarding the prosecution’s burden of proof. (Id. at p. 1015.) The Court also rejected an argument that “having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone’ to convict him of the charged offenses. The problem with defendant’s argument is that the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instruction’s next sentence says quite the opposite: ‘if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.’ ” (Id. at p. 1013.)
The Reliford court also approved the 2002 revised version of the instruction that was used by the court in this case. This version instructs the jury “that the inference they may draw from prior sexual offenses is simply one item to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.” (Reliford, supra, 29 Cal.4th at p. 1015.) The court noted this sentence is not essential to the constitutionality of the instruction, but nonetheless described it as “an improvement,” explaining that it “provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses.” (Id. at p. 1016.) We must follow Reliford, and reject defendant’s contention that CALJIC No. 2.50.01 violates due process. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.)
In his reply brief defendant acknowledges that Reliford, supra, 29 Cal.4th 1007is dispositive of his challenge to CALJIC No. 2.50.01, but suggests that the repetition of the preponderance of evidence standard in CALJIC Nos. 2.50.1 and 2.50.2 somehow renders it more likely that the jury would construe the instructions as permitting a finding of guilt based upon that lesser standard. No such confusion is possible. CALJIC No. 2.50.2 merely defines the preponderance of the evidence standard. Rather than suggest that the prosecution has a lesser burden of proof, CALJIC No. 2.50.1 clarifies that the preponderance of the evidence standard applies only to the determination whether the “defendant committed sexual offenses other than those for which he is on trial,” and reminds the jury “that before a defendant can be found guilty of any crime charged . . . the evidence as a whole, must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” (Italics added.)
In his opening brief, defendant had also relied on Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 (Gibson), to support his contention that CALJIC No. 2.50.01 and CALJIC No. 2.50.1, when read together, are unconstitutional. Gibson is inapposite. The Gibson court reviewed a prior version of CALJIC No. 2.50.01, which lacked the cautionary language contained in the 2002 version given in this case and approved by Reliford, supra, 29 Cal.4th 1007. (See Gibson, at pp. 817-819.)
We conclude that the instructions given correctly state the law, and comply with state and federal due process protections.
IV.
People v. Romero (1996) 13 Cal.4th 497.
Defendant next contends that the court abused its discretion by denying his motion to strike his prior strike conviction based upon defendant’s acts involving L.A. and J.P. The prior conviction was entered in 1987 after defendant pleaded guilty to one count of violating Penal Code section 288, subdivision (a). The court suspended imposition of sentence for the 1987 conviction and placed defendant on probation on condition that he serve 90 days in jail.
Defendant asked the court to strike the 1987 prior because: (1) defendant was 61 years old and, even if sentenced only to the midterm, by the time he was released he would have reached an age when it was not likely he would reoffend; (2) he had maintained steady employment for many years; (3) the current offenses were nonviolent, and he had no other arrests or convictions; (4) the prior conviction was 20 years old, he had successfully completed probation and not committed any other offensives; (4) he is a Marine Corps veteran who served two tours of duty in Vietnam, and is the recipient of several medals, including the Purple Heart; (5) in 1995 he was diagnosed with non-Hodgkin’s lymphoma, but was in remission at the time of sentencing; and (6) he had himself been subjected to an incident of sexual abuse as a child.
The prosecutor argued that although the current offenses did not entail physical violence, they involved an abuse of trust and caused significant emotional and psychological harm. She noted that L.A. still visibly suffered emotionally when she was on the stand. The prosecutor also contended that defendant’s age was not a factor weighing in favor of granting a motion to strike, because defendant had molested three victims over a 20-year period, and defendant presented no evidence that he would not be likely to commit new similar offenses because of his age. The psychological evaluation submitted with the probation report supported the contrary conclusion that defendant presented a risk of harm to female children and adolescents because the pattern of crimes spanned a long time period, he denied the current offense, and he minimized the facts and consequences of his prior offenses. The probation report also noted that despite participating in sex offender treatment, defendant had reoffended.
After hearing argument, the court denied the motion.
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) This court reviews a ruling on a motion to strike a prior conviction “under the deferential abuse of discretion standard.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
In People v. Carmony (2004) 33 Cal.4th 367, the court explained that “a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss citation, or where the court considered impermissible factors in declining to dismiss citation. Moreover, ‘the sentencing norms established by the three strikes law may, as a matter of law, produce an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [¶] But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] Where the record is silent . . . or ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ [citation]. Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Id. at p. 378.)
Our review of the record satisfies us that defendant has not carried his burden of demonstrating the court abused its discretion. (See Carmony, supra, 33 Cal.4th at pp. 379-380.) The trial court carefully reviewed defendant’s criminal record, the nature of the current offenses, his prior performance on probation and parole, and made its decision to deny the motion to strike only after weighing the relevant factors and reaching a rational conclusions that defendant did not fall outside the spirit of the three strikes sentencing scheme. Defendant reargues all of the factors he advanced in the trial court, and asserts that although the court “conscientiously considered” all of these factors it reached the wrong conclusion. In effect, he asks this court to substitute its judgment for that of the trial court by weighing the positive factors he cites more heavily than the factors cited by the prosecution. This we cannot do.
The court was within its discretion to assign little weight to the fact that defendant’s prior conviction was 20 years old, because remoteness does not necessarily take a defendant outside the spirit of the three strikes law. The three strikes law itself expressly rejects remoteness as a ground for avoiding its application. It provides, “The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.” (Pen. Code, § 667, subd. (c)(3).) Nor is it an abuse of discretion to have assigned little weight to defendant’s age. “[M]iddle age, considered alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of the law—a lengthy criminal career with at least one serious or violent felony—would have the inevitable consequence—age—that would purportedly take him outside it.” (People v. Strong (2001) 87 Cal.App.4th 328, 332.) Here, there was no factual basis to support defendant’s assertion that even if sentenced to the midterm he would not be likely to reoffend by the time he was released. To the contrary, his impulses had not waned in the 20 years since the 1987 conviction, despite the experience of having been formally sanctioned once for precisely this type of criminal behavior, and the psychological reports suggested that he continued to pose a danger to adolescent females.
The court took into account the foregoing factors, and considered all of the other positive factors defendant cited, but it clearly assigned more weight to the fact that defendant had, over a period of 20 years, committed serious offenses against three young victims that caused tremendous emotional and psychological harm. Moreover, the prior punishment had not operated as a deterrent, and he repeated the same type of offense. It therefore was within the court’s discretion to conclude that defendant was the type of recidivist to the three strikes law should apply, and to deny his motion to strike the 1987 conviction.
V.
No Contact Order
Defendant also asks this court to strike the court’s order that defendant shall have “no contact with the minor victim,” because B.G. turned 18 in April, or to specify that the no contact order has expired.
The abstract of judgment also provides: “Defendant shall have no contact with victim.”
We decline to do so. We will not strike the no contact order because it was statutorily authorized by Penal Code sections 1202.05 and 5054.2 when the court imposed it. It is unnecessary to specify its expiration date, because, as the Attorney General acknowledges, the order expired by operation of law when B.G. turned 18.
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.