Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. GA056677 Candace J. Beason, Judge. Judgment modified and affirmed as modified.
Vanessa Place, 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, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Mark Ehlers (appellant) of committing a forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1) ; count 1); an attempted lewd act upon a child (§§ 664/288, subd. (b)(1); count 2); false imprisonment by violence (§ 236; count 3); and misdemeanor possession or control of child pornography (§ 311.11, subd. (a); counts 4-13). With respect to counts 1 and 2, the jury found true the allegation that appellant engaged in tying or binding the victim (§ 667.61, subd. (b)). The trial court found that appellant was the individual named in a prior Florida conviction. With respect to counts 1 through 3, the jury found true the allegation that appellant had incurred a prior serious or violent felony conviction within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d). The jury also found true the allegation that appellant had suffered a prior conviction for a sex-related offense within the meaning of section 667.61, subdivisions (a) and (d).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced appellant to a total term of 100 years to life. The sentence consisted of 25 years to life on count 1 pursuant to the one-strike law (§ 667.61), which the trial court tripled under the three strikes law (§ 667, subd. (e)(2)(A)(i)) and a consecutive term of 25 years to life on count 3. The trial court stayed punishment on the remaining counts. The trial court imposed a $100,000 restitution fine pursuant to section 1202.4, subdivision (b).
Appellant contends on appeal that: (1) his convictions must be reversed for the improper and prejudicial admission of prior offenses pursuant to Evidence Code section 1108; and (2) his convictions must be reversed because admission of propensity evidence under Evidence Code section 1108 deprived him of his right to a fair trial and violated his rights of due process and equal protection.
Respondent contends that the judgment should be modified to reflect a $10,000 restitution fine and a $10,000 parole revocation fine.
FACTS
I. Prosecution Evidence
A. Charged Crimes
Karen S. (Karen) lived in Burbank with her six children. One of these children was P.S. (P.), who was born in 1992. Sometime before 2004, appellant moved into a guest house behind the house next door to Karen’s. A friendship between appellant and Karen’s family developed. Appellant told Karen that he was a substitute teacher for the Burbank and Glendale school districts. He said that he worked with troubled and disturbed children. Testimony at appellant’s trial revealed that these school districts had no record of appellant being employed as a substitute teacher. A Los Angeles County database likewise showed no record of appellant having worked in these school districts.
Appellant gained Karen’s trust by doing favors for the family. He took food, sodas, and games to Karen’s house. He gave her husband a refrigerator and helped Karen take care of a tree that fell down in their yard. The children borrowed tools from appellant. Karen testified that appellant visited occasionally in the beginning but he then came over very regularly “and it was too much.” Karen believed that the last time appellant visited the house he asked her where P. slept.
In 2004, P. got into trouble in school for fighting at school and lying about it. He was taking medication for bed-wetting and attention-deficit disorder. P. also lied to Karen occasionally and acted out angrily. Karen sought appellant’s advice about how to handle P.
During a time when Karen and her husband, Troy S. (Troy), were separated, P. was being home-schooled. P. would go swimming in the pool where appellant lived and would play with the child who lived in the main house. P. would play video games at appellant’s home several times a week. If P. did not behave, appellant would put him in a choke hold or pinch his neck. Appellant gave P. a video game called “Grand Theft Auto.”
In January 2004, appellant offered to remove some links out of a watchband belonging to a watch P. had bought. Appellant told P. that he had to know P.’s wrist size, and he put a pair of handcuffs on P.’s right arm. During the same month, appellant bet P. that P. could not escape from a pair of handcuffs, and P. said he could. After appellant handcuffed P., appellant brought out some wooden poles with brackets on them. He attached the poles to belts on P.’s heels and locked the poles to the handcuffs. He attached another wooden pole between P.’s arms with a bracket. Appellant then locked the two poles together so that P. could not move his arms or legs. This occurred in appellant’s bedroom while P. was on his knees on appellant’s bed. P. felt trapped.
Appellant asked P. if it would be better if he took P.’s shirt off, but P. said, “No.” Appellant nevertheless removed the handcuffs from P. and pulled off P.’s shirt. He then replaced the handcuffs. Appellant tickled P.’s chest and then put his hand down the front of P.’s pants three or four times. Appellant “almost” touched P.’s penis. Appellant then left the room and came back with a camera. He asked P. if he could take pictures of him and P. said, “No.” Appellant took pictures anyway. P. began moaning and appellant released him. Appellant asked P. if he felt weird about it, and P. said “No” but went outside as fast as he could. He jumped the fence between his house and appellant’s. P. sometimes went back to appellant’s home after this incident because he was afraid appellant might begin following him.
On or about March 6, 2004, Troy told P. and two of his siblings that he had been molested as a child. He wanted to warn them not to trust all adults. P. told Troy that he believed something like that might have happened to him. Troy was shocked and asked P. if he wanted to talk about it. P. said he would rather talk when the other children were not around. Troy did not ask about it again because he was waiting for the appropriate time. On the next occasion that they discussed it, P. told Troy that appellant had molested him.
On or about March 15, 2004, P. was with appellant outside appellant’s house. Appellant showed P. some Velcro straps and a Speedo swim suit with a dog leash attached to the crotch. Appellant told P. he would pay him if P. put the swim suit on, but P. refused. Appellant quickly put the Velcro straps on P., and P. told appellant to take them off. P. tried to jump over the fence that separated his house from appellant’s but appellant would not let him. Every time P. tried to get over the fence appellant pulled him down. P. ran into appellant’s house and into the bedroom to hide. Appellant entered the bedroom and P. tried to run out of the doorway but appellant, holding the Velcro straps, blocked the doorway. P. picked up a knife from appellant’s nightstand and said, “If you don’t move I’ll cut you.” Appellant laughed and told P. to drop the knife. Appellant eventually took the knife away from P., and P. ran out of the house. As P. was about to climb the fence appellant gave him a $10 bill and told P. to get something to eat.
On March 15 or 16, 2004, P. told L.Q. (L.), his best friend, that appellant had taken off his shirt and put handcuffs on him. He told L. that appellant had molested him, tickled him, and taken pictures of him. L. thought P. seemed depressed. P. had previously told L. that appellant was his neighbor and friend and that appellant often invited P. to his home. P. also told L.’s sister and his own sister about the incidents. L. told his mother, Patricia, what P. had told him, and Patricia asked P. about it. P. told her that appellant “wanted to play tickle games and handcuff him and take pictures.” Patricia called Karen and told her that appellant had handcuffed P., shackled him, taken off his shirt, and taken photographs. She told Karen that appellant had put his hands down P.’s pants and tickled him and that P. did not want to tell anyone what had occurred.
Karen asked P. about what happened. P. told her the same facts that Patricia had told Karen. Karen took P. to the Burbank police station, and police interviewed him. P. told police what had occurred with appellant. He described the poles, handcuffs, camera, and knife. Karen told P. that, if he wanted to, he could tell her anything, but he did not have to tell her. P. said he did not want to talk about it.
On March 17, 2004, Sergeant Brian Llewellyn participated in a search of appellant’s home. Sergeant Llewellyn was experienced in the investigation of sexual crimes against minors. He recognized several items in appellant’s home as typical of sexual bondage play. These included binding poles, a dream catcher (a hoop wrapped in black leather with lace and feathers), Velcro straps, large rubber bands, a carabiner (a device for quickly attaching something to a rope or loop), and hooks installed in appellant’s bed and bedroom ceiling. Police also recovered bottles of lubricating liquid and gel, two digital cameras, computer equipment, compact discs, and a double-edged 12-inch knife. There was a credit-card-size camera. A sheathed knife was found in a cubbyhole that was part of appellant’s nightstand. Some of the recovered items corroborated P.’s account of the January and March 2004 incidents. Some of the items P. described, such as the handcuffs, were not found. Sergeant Llewellyn stated that the items not found were small and could have been taken away.
Sergeant Llewellyn testified about the grooming of victims by sexual offenders. Suspects develop relationships with victims by being friendly, praising them, and gaining their trust. Occasionally they show pornographic pictures to the victim. Although P. never reported appellant showing him pornographic pictures, appellant ingratiated himself with P.’s mother and told her he was a schoolteacher. He gave P. a video game that involved violence and prostitution, and he tickled and “hors[ed] around” with P. Sergeant Llewellyn said it was not uncommon for victims to go back and visit the person who molested them, and they did not always report the crimes immediately.
Officer Stephen Maxwell performed a forensic evaluation of appellant’s computer equipment. Police detected child pornography in the two computers and in numerous compact discs found in appellant’s home. In the People’s exhibits Nos. 14 to 23, the prosecution exhibited images that had been downloaded onto appellant’s computer on specific dates between January 2002 and February 2004. The digital camera contained no photographs, and no photographs of P. were discovered on appellant’s computer.
On May 26, 2006, P. was arrested for residential burglary after he and two friends entered an unlocked pool house. They drank wine found in the house. The boys went there because they had not been permitted to sleep at P.’s friend’s house next door. P. told his friend’s mother that his friend had been forced to do it. P. also told police that one of his friends was going to beat P. up if he did not enter the pool house, which was not true. P. was given immunity from any charges based on this incident, and he promised to tell the truth about it.
B. Evidence of Prior Acts
Timothy B. (Timothy), who was 35 years old at the time of trial, met appellant when he was 12 years old and appellant was 18 or 19. Timothy and his family lived in Florida, and appellant was a friend of Timothy’s brother. Appellant eventually began staying with Timothy’s family, usually sleeping on the couch. Appellant began to spend a lot of time with Timothy, and Timothy thought it was “cool” to be hanging out with someone older. Appellant gave him gifts and played games with him, which Timothy liked. Appellant began to try to hold Timothy’s hand or rub his leg, and he would try to kiss Timothy whenever they were alone. Appellant took Timothy places where they could be alone. Appellant touched and kissed Timothy’s penis, buttocks, face, legs, arms, and “everything.” Appellant began going to Timothy’s room in the middle of the night and performing sexual acts. Timothy started pushing appellant away and asking appellant to leave him alone. Appellant was much taller than Timothy. Once appellant threatened Timothy by saying that if Timothy ever told his parents about anything that was going on, appellant would make Timothy pay him for some pills of appellant’s that Timothy had accidentally spilled. Appellant said they cost $100 each, and there were at least 30 of them. Timothy was scared because he did not know how he would raise the money.
One day Timothy came home to find a police car at his home. A police officer asked Timothy if he knew who appellant was and asked about experiences Timothy had had with appellant. Timothy remembers going to his room afterwards and then being called outside to identify appellant as the person they had been discussing. The police handcuffed appellant and took him away.
Detective Ronald Miller took part in the investigation of appellant’s current charges. He contacted the Seminole County Sheriff’s Department in Florida and requested a fingerprint card from appellant’s arrest in the early 1980’s, and the fingerprints were mailed to him. A qualified fingerprint expert matched the fingerprints sent from Florida to appellant’s fingerprints.
Richard Sato is a paralegal with the Los Angeles County District Attorney’s Office. He identified a series of documents from the Seminole County Circuit Court in Florida bearing appellant’s name. Among them were an information containing six charges against appellant, and the named victim was Timothy. In November 1983, appellant was convicted by plea of two of the six counts charged. The Florida statutes defined the first count as a crime equivalent to section 288a, subdivision (c)(2) of the California Penal Code. The information in Florida also alleged the use of physical force and violence with respect to this count. The second count to which appellant pleaded was equivalent to section 286, subdivision (c)(2) of the California Penal Code. The use of physical force and violence was also alleged with respect to this count.
II. Defense Evidence
L. testified that when P. told him about the incident with appellant it appeared P. did not want to talk about it. L.’s mother testified that she did not remember saying that P. told her nothing happened after appellant told P. he wanted to play tickle games, put handcuffs on him, and take pictures. She acknowledged that the People had paid to fly her from New York for trial.
P. did not tell Officer Greg Kaufman, the first officer he reported the crimes to, that he had told anyone except L. When asked by Officer Kaufman if he had told anyone else, P. replied, “No.” P. did not mention that he had grabbed a knife during the March 15 incident. He did not tell the officer about the time appellant allegedly used handcuffs to measure his wrist for a watchband.
Sergeant Darin Ryburn testified that P. originally was not a suspect in the burglary of the pool house, but he voluntarily admitted that he was there when police went to interview another suspect. He also admitted to being in the pool house on a previous occasion.
Chad Carson, a defense investigator, testified that L.’s mother told him that P. told her appellant wanted to take pictures and place handcuffs on P., but nothing more happened.
DISCUSSION
I. Admission of Evidence Under Evidence Code Section 1108
A. Appellant’s Argument
Appellant contends that the trial court erred in admitting evidence of appellant’s prior offenses pursuant to Evidence Code section 1108. He asserts that the trial court’s pro format analysis does not satisfy the requirement that the trial court carefully consider the factors set forth in People v. Falsetto (1999) 21 Cal.4th 903 (Falsetta) for determining the degree of prejudice caused by admission of such evidence. According to appellant, the evidence admitted was unduly inflammatory, insufficiently probative, and overly remote.
Appellant adds that his trial was a credibility call between a troubled minor and a man who in many respects treated minor and his family with generosity. Appellant’s defense that P. fabricated or embroidered the two incidents was relatively strong. He asserts that, by admitting evidence of a hard-core molestation that occurred 23 years earlier, the trial court went beyond evidentiary error and deprived appellant of his constitutional right of due process and the right to a fair trial.
B. Proceedings Below
The record indicates that the trial court considered motions filed by both parties on the issue of admission of appellant’s prior conviction for a sex offense. At argument on the motion, defense counsel contended that the conduct in the prior offenses, which involved oral copulation and sodomy, was a far cry from the conduct in the instant case. Here there was no touching of the genital areas or penetration. Therefore, in addition to being inflammatory, the prior did not prove anything as to the current charges. The evidence allowed the People to suggest that because appellant did those things 23 years ago it was more likely he committed the charged offenses. Defense counsel also argued that the jury could become confused because what happened then had nothing to do with the acts in this case. Counsel asserted that the prior was remote and that proving the conviction would consume an undue amount of time. Finally, the evidence was cumulative and not probative.
The prosecutor argued that it was entirely proper for the prosecution to argue that appellant had the propensity to molest children, based on his past criminal acts, since that is why the Legislature carved out an exception to Evidence Code section 1101. He maintained that the prior was not remote in the sense that appellant had not lost his propensity to commit the same type of crime. The jury would not get confused, since it would hear that appellant was punished for his prior crime. The prosecutor stated that the evidence was highly probative on the issue of intent. The prosecutor estimated that only two hours would be consumed by the prior victim’s testimony.
At the end of extensive argument, as summarized above, the trial court stated, “I have considered -- I’ve read through [People v.] Harris [(1998) 60 Cal.App.4th 727], I’ve read through [People v.] Branch [(2001) 91 Cal.App.4th 274], I’ve read through [People v.] Ewoldt [(1994) 7 Cal.4th 380], all of those, and have weighed the factors involved and have also considered it under [Evidence Code section] 352, and I’m convinced that under [Evidence Code section] 1108 it is admissible. So that’s the ruling at this time.”
The trial court was referring to cases cited in the prosecution and defense written motions and oral argument regarding the introduction of the prior act evidence.
C. Relevant Authority
Evidence Code section 1108 permits the introduction of propensity evidence related to the commission of another sex offense in a sex offense case. (See Falsetta, supra,21 Cal.4th at p. 907.) It provides, in relevant part: “(a) In 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.”
In Falsetta, our Supreme Court noted that the Legislature enacted Evidence Code section 1108 in order to expand the admissibility of propensity evidence in sex offense cases, modeling Evidence Code section 1108 after rule 413 of the Federal Rules of Evidence, which permits evidence of the defendant’s commission of a sexual assault offense to be admitted in a criminal case in which the defendant is accused of sexual assault. (Falsetta, supra, 21 Cal.4th at p. 912.) Our Supreme Court noted that Federal Rules of Evidence, rule 414 (28 U.S.C.) allows similar propensity evidence in child molestation cases. The Falsetta court determined that Evidence Code section 1108 does not unduly burden the defendant because it does not allow unrestricted admission of defendant’s bad acts, character or reputation, but “is limited to the defendant’s sex offenses, and it applies only when he is charged with committing another sex offense.” (Falsetta, supra, 21 Cal.4th at p. 916.) The defendant will not be unduly prejudiced because Evidence Code section 352 mandates a careful weighing process.
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.” “‘The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. . . . Moreover, the trial court’s ruling under section 352 will be upset only if there is a clear showing of an abuse of discretion. [Citation.]’” (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Abuse occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) In most cases, the appellate courts will uphold the trial court’s exercise of discretion regardless of whether the evidence is admitted or excluded. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
D. No Abuse of Discretion
In Falsetta, the court explained that in weighing the probative value of “propensity evidence” under Evidence Code section 1108 against its prejudicial effect, the court “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.)
We believe the trial court acted within its discretion in admitting the evidence of appellant’s prior sex offenses. The prior acts appellant committed were relevant to show motive, intent, and a common scheme or plan. The evidence was not unduly prejudicial or cumulative of other evidence the People could have used for the same purposes.
Contrary to appellant’s assertion, there were substantial similarities between the prior offenses and the acts he committed in the instant case. In both cases, appellant ingratiated himself with a young male. Although appellant was only 19 at the time of the first offenses, the testimony of his victim indicates that the age difference made appellant’s attentions flattering, as they apparently did in the instant case. The victims’ ages were almost identical—P. was 11 and the former victim was 12. In both cases appellant became closely involved with the victim’s family and achieved a position of trust and friendship in their lives. Appellant gave gifts to both of his victims to gain favor and gradually began introducing physical contact into the relationship. Thus, the prior incident was sufficiently probative to show intent and common scheme as well as motive. (See People v. Balcom (1994) 7 Cal.4th 414, 427 [probative value of evidence stems from similarity between charged and uncharged conduct].) Appellant’s intent in his behavior with P. and his family and in the specific acts he performed was clearly at issue, since it was an element of the charged crimes. Furthermore, appellant denied the charges and sought to impugn P.’s credibility.
We disagree with appellant’s assertion that the prior was overly remote. There is no bright-line rule regarding remoteness, and long periods of time have not precluded admission. (See, i.e., People v. Branch, supra, 91 Cal.App.4th at pp. 284-286 [prior act 30 years earlier admissible]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [prior act 18 to 25 years earlier admissible]; People v. Soto (1998) 64 Cal.App.4th 966, 991-992 [passage of substantial time does not automatically signify that prior incident is prejudicial].) Even in People v. Harris (1998) 60 Cal.App.4th 727, heavily relied upon by defense counsel and cited by appellant, the court stated that staleness is relevant only if the defendant has led a blameless life. (Id. at p. 739.) Although appellant was not convicted of any sex crimes or other crimes in the interim, he has shown a predisposition to commit such crimes by the child pornography he collected, the elaborate preparations he made for sexual bondage play, and his ingratiating behavior with P. and his family. As stated in People v. Branch, supra, 91 Cal.App.4th at page 285, remoteness relates to predisposition, and similarities balance out remoteness. (See also People v. Waples, supra, at p. 1395.)
The prejudice from admission of the prior conduct was not so great as to substantially outweigh its relevance. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code 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. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638; accord People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
The prior victim’s testimony consumed only a small portion of the total trial testimony, approximately 15 pages. In addition, the prior act was not more inflammatory than the charged conduct. Although there was actual sexual conduct in the prior acts, the current offenses—which consisted of imposing and attempting to impose bondage on a young victim—were not significantly less egregious. The prior conduct may be viewed by some as less disturbing, since it involved two young persons much closer in age than appellant and P. Also, appellant was convicted and imprisoned for the prior acts, mitigating the chance that the jury would be confused and seek to punish appellant for past conduct. (See Falsetta, supra, 21 Cal.4th at p. 917.) As stated in People v. Balcolm, supra, 7 Cal.4th 414, the fact that the uncharged acts resulted in a criminal conviction and a prison term decreases the potential for prejudice in two ways, by avoiding undue consumption of time and confusion of the issues. The jury was not tempted to convict defendant of the charged offenses in order to punish him for the uncharged offenses, and the jury’s focus was not diverted to deciding if appellant had actually committed the uncharged offenses, since his conviction conclusively determined that fact. (Id. at p. 427.)
Finally, we disagree with appellant’s assertion that the trial court’s “summary statement” was inadequate to show that it had engaged in the required careful weighing process. As stated in People v. Taylor (2001) 26 Cal.4th 1155, 1169, “a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352.” In this case, the court heard exhaustive argument from both parties and considered their written motions. The court considered the case law cited by both parties and expressly stated it had considered the evidence under Evidence Code section 352. As in People v. Taylor, the record as a whole shows the court undertook a careful weighing process in reaching its decision.
We conclude that appellant’s prior offenses were highly probative and the probativeness substantially outweighed any potential prejudice. Because we perceive no error, we do not address appellant’s argument that the trial court’s error was not harmless.
II. Alleged Federal Constitutional Error
A. Appellant’s Argument
Appellant contends that the California Supreme Court’s holding in Falsetta must be reconsidered in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, which held that the trial court erred in reading a jury instruction that did not limit the jury to a permissible inference based on other crimes evidence, but rather invited the jury to draw the additional inference of criminal propensity. (Garceau v. Woodford, supra, at p. 775, reversed on another ground in Woodford v. Garceau (2003) 538 U.S. 202.) Appellant asserts that under the reasoning of Garceau v. Woodford, other crimes evidence admitted to infer criminal propensity violates the due process clause. Appellant also claims that Evidence Code section 1108 violates the equal protection clause because propensity evidence is admitted only in sex cases and excluded in all other prosecutions. He states that his convictions must be reversed due to application of Evidence Code section 1108 in his trial.
B. No Constitutional Violation
At the outset we observe that federal constitutional claims involving the admissibility of evidence are not reviewable on appeal unless the defendant timely objected on those grounds in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20, People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10.) Here, appellant failed to object to the evidence of his prior offenses on any grounds other than those arising under Evidence Code section 352. In any event, we conclude that his arguments are not convincing.
Garceau v. Woodford is, in the first instance, not binding on this court (People v. Avena (1996) 13 Cal.4th 394, 430) and, in the second instance, not relevant to the instant case. That case did not discuss the admissibility of prior sex offenses in a sex offense case. Rather, it concerned the introduction of evidence that the defendant had been convicted of murder in a prior case and testimonial evidence that he manufactured illegal drugs, introduced pursuant to Evidence Code section 1101. (Garceau v. Woodford, supra, 275 F.3d at p. 773.) The California Supreme Court had held that this admission of prior crimes evidence to show propensity to commit murder violated California law, but the error was harmless. The Ninth Circuit disagreed with the finding that the error was harmless, not on the underlying inadmissibility of the other crimes evidence. Therefore, Garceau v. Woodward does not call into question the conclusion reached in Falsetta that Evidence Code section 1108 passes constitutional muster.
Furthermore, in U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1031, the Ninth Circuit held that Federal rule 414, which concerns admission of evidence of another offense of child molestation, is constitutional. Employing a rationale similar to that of Falsetta, the Ninth Circuit held that Federal rule 414 does not violate due process, equal protection, or any other constitutional guarantee in light of Federal rule 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. (U.S. v. LeMay, supra, at p. 1031.) It thus appears that the Ninth Circuit itself has not adopted appellant’s interpretation of Garceau v. Woodford. Finally, it is not our role to reevaluate the holding of Falsetta that upheld the constitutionality of Evidence Code section 1108. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also argues that, because propensity evidence is admitted only in sex cases, Evidence Code section 1108 violates the equal protection clause in that it discriminates on an irrational basis, since the recidivism rate for sex offenders is lower than that of other types of offenders. This argument was rejected in People v. Fitch (1997) 55 Cal.App.4th 172, 184 (Fitch), which held “the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests.” (See also Falsetta, supra, 21 Cal.4th at p. 918.) Fitch, whose reasoning was endorsed by Falsetta, noted that the Legislature was free to apply this remedy to one area of the law and neglect others. (Falsetta, supra, at p. 918; Fitch, supra, at pp. 184-185; see also People v. Waples, supra, 79 Cal.App.4th at pp. 1394-1395.) Appellant’s equal protection argument is without merit.
III. Fines
Respondent correctly points out that the trial court imposed an excessive restitution fine pursuant to section 1202.4, subdivision (b) and failed to impose a parole revocation fine pursuant to section 1202.45. People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 noted that the maximum restitution fine under section 1202.4, subdivision (b) is $10,000. Section 1202.45 provides that when a person is convicted of a crime and the sentence includes a period of parole, the trial court must impose a parole revocation restitution fine at the time of imposing the restitution fine. People v. Terrel (1999) 69 Cal.App.4th 1246, 1255-1256 confirms that a section 1202.45 parole revocation restitution fine must be imposed in an amount identical to the restitution fine. Therefore, we will modify the judgment to reduce appellant’s restitution fine to $10,000 and to impose a parole revocation fine in the same amount.
DISPOSITION
The judgment is modified to reflect a $10,000 restitution fine and a $10,000 parole revocation restitution fine. In all other respects, the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect the modification and to forward an amended copy to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., ASHMANN-GERST, J.