Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. FWV800879, Mary E. Fuller, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Michael Edward Ermitano appeals his jury conviction for sexual penetration by foreign object. (Pen. Code, § 289, subd. (a)(1).) He argues his conviction should be reversed, because the trial court improperly and prejudicially admitted prior acts evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was a manager for a speaker distributor. The victim in this case was a temporary employee under defendant’s supervision. For two to three weeks, the victim worked as a processor labeling and shipping boxes from the warehouse. When the victim first started, defendant took her and a coworker out to lunch, and defendant indicated he routinely took new workers to lunch. The victim liked her job, and defendant told her it was possible for her to be hired on a permanent basis.
When no one else was around, defendant sometimes made inappropriate comments to the victim, but she just brushed them off. Because the warehouse was large, defendant used a golf cart to get around. One time he offered the victim a ride, and while she was sitting in the golf cart with him, he leaned over and tried to kiss her, but she backed away. Defendant also asked her out for a date “almost every day.” One time, defendant called the victim at home and asked her out on a date. She told defendant she did not date her bosses. The victim did what she could to brush defendant off without making him angry because she wanted to be hired on a permanent basis.
The victim’s normal shift was from 8:00 a.m. until between 3:00 or 4:30 p.m. However, on November 30, 2007, she was supposed to get to work about 6:00 a.m. because they were very busy. On the way to work, the victim got into a car accident and did not arrive at work until 8:00 a.m. Defendant told her she would have to take a late lunch, and that he would take her to lunch if she wanted to go. Later, defendant drove up to the victim in his golf cart and showed her a bottle of liquor he had received from a vendor.
At lunchtime, defendant was waiting for the victim outside in his truck. When she got in, defendant indicated he needed to stop by his home to drop off the bottle of liquor because he was not supposed to have it at work. Defendant got out of the truck at his apartment and insisted the victim get out too. She hesitated, because she did not really want to go inside, but defendant said they would just drop the bottle off and would not be there long. The victim reluctantly went inside defendant’s apartment with him.
Once inside the apartment, defendant closed the door behind them and went to the kitchen. The victim started looking at some pictures and then walked toward the kitchen, where she could see he was cutting lemons and pouring drinks from the bottle of liquor. She was really surprised, but laughed and said, “I know we’re not about to drink this before we go back to work.” Defendant said, “[O]h, it’s nothing,” and “one shot isn’t going to make you drunk.” Although the victim did not want to, she drank the shot because defendant was her manager and she thought it would speed things along so they could leave the apartment. After they both drank a shot, the victim suggested they go to lunch as originally planned; defendant jokingly said he would make her a peanut butter and jelly sandwich.
Defendant put everything away and started to walk toward the front door. She followed believing they were about to leave the apartment. However, defendant turned around and tried to kiss the victim. She moved backward and from side to side trying to get away. She continued to walk backward to avoid him until she fell down onto a sofa. Defendant kneeled down in front of her and put his whole body on top of her so that she was pinned down and could not get up. While he continued trying to kiss her, she was trying to push him off. To no avail, she told him in a loud voice numerous times to stop. Defendant then tried to put his hands inside of her pants to pull them down; she attempted to pull them back. Because he was stronger, he was able to get her pants down to the middle of her thighs.
After pulling her pants down, defendant forcefully shoved his fingers inside her vagina and moved them in and out at a fast pace. At the same time, he was trying to get his own pants off. The victim was really afraid she was about to be raped. Although she continued to yell, “stop,” he did not listen. The victim finally told defendant that she was going to report him and quit her job. Defendant immediately stopped, pushed her legs up into the air, swung her out of the way, and told her to get up and fix her hair.
On the way back to work, defendant commented that now he knows “no means no.” He also asked whether there was anything he could do to make this up to her. She did not know how to react; it was the first time something like this had happened to her, so she remained silent. Especially because of the overtime pay, she really wanted to keep her job. Therefore, she did not immediately report the incident and did her best to “keep a straight face” when she returned to work. She worked another 12 hours that day. Her sister picked her up about midnight. The victim was so tired that she fell asleep in the car. The next day was Saturday. She called police that evening to find out what to do and was told to go to the police station the next morning.
On Sunday, the victim gave police a statement. The detective wanted her to take the day off on Monday when she was supposed to return to work, so he could set up an investigative telephone conference. However, when the victim called in she was told she was no longer needed. About six to nine months later, the victim found a lawyer and decided to file a civil action against defendant and her former employer for harassment, discrimination, and sexual battery.
In support of the victim’s credibility, the People presented testimony by a witness who was a former employee of the same company who also worked under defendant’s supervision from January or February through April 2007. The witness testified that when no one else was around defendant made inappropriate sexual comments to her and tried to grab her buttocks.
On a Friday in March 2007, defendant persuaded the witness to go out to happy hour after work with a small group of other employees. However, she and defendant were the only employees who went to happy hour. At happy hour, defendant acted appropriately toward the witness and she felt comfortable with him. At some point during the evening, the witness remembered that she had left her paycheck at work. She needed her paycheck to pay bills. Defendant told her he had a key and knew the alarm system password so he would take her back to work and let her in to get her check. They went back into the office together, and she waited while he retrieved her check.
Defendant gave the witness her check and then tried to hug and kiss her, but she said, “no, no, stop.” She attempted to leave but found defendant had locked the front door and she could not get out. While she was trying to get out, defendant was behind her, lifting her dress up, and she felt him touching her. She kept telling him to stop and tried to push his hand away. Defendant pulled her down onto a sofa. She said she wanted to leave, but defendant started groping her breasts and putting his hand under her dress. He was able to lift her dress and put his finger inside her vagina. She got up, but he pushed her back down onto a chair. He then lifted her legs and was trying to remove her underwear while at the same time trying to take off his own pants. At that time, she was afraid he was going to rape her and was screaming, “Stop. Please stop. Stop.”
All of a sudden, defendant “snapped out of it,” and the witness was able to get up. Defendant unlocked the door and drove her back to her car. The witness went home. She did not tell anyone because she did not want the police to come or “to put [her] family through that.” She was also afraid she would lose the job if she told anyone, and her job was important to her. The same night, she called defendant to confront him and let him know she was upset with him. He cried while they were on the phone and told her he was sorry. Although she felt uncomfortable, she returned to work until she was able to find another job. She never told anyone at work what happened and did not contact police. In June or July 2007, an investigator called to ask her questions and she gave him a statement. In August 2007, she met with an attorney and decided to file a civil lawsuit.
A detective with special training and experience in sexual assault cases testified it is “pretty common” for victims not to report this type of crime, because they feel ashamed or embarrassed. Others do report this type of crime but want to remain anonymous and do not want anything done about it. As part of his investigation in this case, the detective drove the victim to defendant’s home to confirm she knew how to get there and had her sketch the layout of the inside of defendant’s apartment. The victim’s sketch was consistent with the floor plan of defendant’s apartment.
DISCUSSION
Defendant contends the trial court abused its discretion in admitting testimony about the prior incident because it was overly prejudicial and confusing to the jury. According to defendant, he was never charged or convicted of the prior incident and, because the testimony consisted entirely of uncorroborated statements, this evidence was overly prejudicial and confusing. Defendant also believes there was a lack of evidence to support the charge, and the case was therefore a close one. As a result, he claims the testimony about the prior incident was overly prejudicial in that it is reasonably probable the jury would have reached a different conclusion if the testimony was excluded. We disagree.
A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Evidence of a defendant’s conduct is generally not admissible to show disposition or propensity, but is admissible to prove identity, plan, intent, knowledge, or opportunity. (Evid. Code, § 1101.) Section 1108 is a statutory exception, which allows propensity evidence to be admitted in sex offense cases to show a defendant is more likely to have committed the charged offense. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
All further statutory references are to the Evidence Code unless otherwise indicated.
“[S]ection 1108 was intended in sex offense cases to relax the evidentiary restraints [of] section 1101, subdivision (a)... to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Falsetta, supra, 21 Cal.4th at p. 911.) As stated by our Supreme Court in Falsetta, “the Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes. [Citation.]” (Id. at p. 915.)
Under section 1108, uncharged sexual misconduct is admissible subject to section 352. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1315.) Section 352 is a safeguard against the possible undue prejudice that can arise from the admission of evidence of uncharged sexual misconduct. Section 352 requires the trial court to “engage in a careful weighing process” by considering several factors to determine whether the probative value of the evidence outweighs its prejudicial effect. These factors include the nature of the act, its relevance and reliability, possible remoteness, the likelihood of confusing, misleading, or distracting jurors, its similarity to the charged offense, the burden on the defendant in defending against the uncharged acts, and the availability of less prejudicial alternatives. (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Under section 352, “[t]he 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 ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) When evidence of uncharged misconduct is no stronger and no more inflammatory than evidence presented on the charged offense, the potential for prejudice is decreased because these circumstances make it unlikely a jury’s passions would be inflamed by the uncharged misconduct. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.) In addition, the probative value of uncharged misconduct is greater if it is wholly independent of the evidence of the charged offense. (Ibid.)
Prior to trial, the People filed a motion in limine seeking to admit testimony about one prior instance of similar sexual misconduct by defendant, which occurred in March 2007. The People sought admission of this evidence under section 1108, subdivision (a), to show defendant had a disposition to commit sex offenses. According to the People, there were a number of other victims who could also be called to testify about other similar incidents. However, the People were only asking the court to admit testimony by one witness in order to avoid any confusion, undue prejudice, or excessive consumption of the jury’s time. In opposition, defense counsel argued this evidence was too prejudicial.
The trial court granted the People’s motion, and explained its ruling as follows: “I do not see that this evidence would be misleading, confusing or distracting to the jurors. It’s a similar, very similar incident. The delay in reporting the underlying charged incident is significant and [the victim] needs to establish that this isn’t a manufactured or fabricated complaint and the prior would support her position that it was not. And it’s only one of evidently several incidents that occurred.”
In our view, the trial court’s admission of a single prior act of sexual misconduct was not unduly prejudicial to defendant. The defense theory of the case was that the victim was simply not believable. As a result, the victim’s credibility was the key issue in the case. Therefore, evidence of prior sexual misconduct of a similar nature was not only relevant but highly probative of the credibility of the victim of the charged offense. The challenged testimony was particularly probative of credibility, because the victim and the witness did not know one another and the separate incidents they described were remarkably similar. In each instance, for example, the victim and witness were employees under defendant’s supervision, so defendant held a position of authority and trust as to both women. They both testified defendant made comments of a sexual nature to them at work and had acted inappropriately toward them prior to the acts of sexual misconduct. In both instances, defendant was able to manipulate or take advantage of the circumstances, so he could be alone with each of them. Although it is apparent he had an ulterior motive for isolating them all along, defendant was able to persuade both women they could go along and be alone with him without jeopardizing their personal safety. In both instances, defendant ignored the pleas for him to stop and was then apologetic after the fact. The circumstances also suggest defendant used alcohol in an attempt to put both women at ease. In sum, the challenged testimony strongly supported the inference that defendant committed the charged offense pursuant to a common design or plan. Because the probative value of the prior sexual misconduct evidence was particularly high on the issue of credibility, it weighed heavily in favor of admission.
Other factors also weighed in favor of admitting the testimony about defendant’s prior sexual misconduct. The witness’s testimony about the prior incident was not particularly time consuming, remote, or inflammatory in comparison to the charged offense. Nor is there anything to even suggest the jury might have been confused by the issues because defendant was not convicted of the prior sexual misconduct and therefore did not properly assess defendant’s guilt or innocence of the charged offense.
We also cannot agree with defendant’s contention that admission of the prior sexual misconduct evidence was unduly prejudicial because the testimony was largely uncorroborated by physical or other evidence. Defendant’s argument merely identifies the precise reason for the admission of evidence under section 1108. As our Supreme Court acknowledged in Falsetta, “sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence.” (Falsetta, supra, 21 Cal.4th at p. 915.) Thus, the intent of section 1108 is “to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Id. at p. 911.) Finally, the jury was given appropriate limiting instructions on the use of the prior acts evidence to prevent any potential prejudice. We presume the jury followed these instructions. (People v. Gray (2005) 37 Cal.4th 168, 217.)
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., KING J.