Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV039044. Mary E. Fuller, Judge.
Richard Jay Moller, 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, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Peter M. Gallegos appeals from his conviction of committing a lewd act on a child (Pen. Code, § 288, subd. (a)) along with a true finding on a prior sex offense strike allegation (§§ 667.61, subds. (a) & (d), 1170.12, subds. (a)-(d), and 667, subds. (b)-(i).) Defendant contends (1) the trial court erred by admitting evidence of defendant’s prior sex crime under Evidence Code sections 1108 and 352; (2) the trial court abused its discretion by failing to strike defendant’s prior sex offense; (3) defendant’s sentence of 50 years to life constitutes cruel and unusual punishment; (4) the trial court improperly used a single prior conviction to impose 25 years to life under the One Strike law and then doubled that sentence under the Three Strikes law; and (5) the abstract of judgment incorrectly indicates a concurrent 25 years to life for defendant’s prior under section 667.61, subdivision (a). The People concede that the abstract of judgment must be corrected. We find no other errors, and we affirm.
All further statutory references are to the Penal Code unless otherwise specified.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
On September 8, 2006, 12-year-old John Doe went to a restroom at the Ontario Mills Outlet Mall while his 15-year-old cousin Andrew waited at a video game store. The grandmother of the boys had arranged to meet them outside the game store.
When Doe was alone in the restroom, he started to use the urinal on the far right. Defendant entered the restroom and went to the second urinal from the left, but then moved to the urinal next to Doe. Another man entered the restroom, and defendant moved back to the second urinal from the left. The other man went into a stall and closed the door.
Defendant walked to the urinal Doe was using, got down on his knees, and stroked Doe’s penis for two or three seconds. Defendant told Doe to go to JCPenney because “it[’]s better there.” Doe believed defendant was talking about the restroom at JCPenney. Doe wanted to get away from defendant, so he said, “okay.” Doe left the restroom, ran to the game store, and told Andrew what had happened.
Doe and Andrew then ran to where their grandmother was waiting. Doe’s eyes were watery, and he was shaking, nervous, and frightened. He told the grandmother that when he was in the restroom, a man had touched his “private.” The grandmother asked what he meant, and he said, “[t]his guy grabbed my penis.” He said the man had gotten down on his knees, grabbed Doe’s penis, and stroked it. Doe demonstrated the stroking motion.
The grandmother asked what the man looked like, and Doe gave a description of defendant and his clothing. The grandmother contacted mall security personnel and looked around for someone who fit the description Doe had provided. A short time later, she and Doe saw defendant near the mall entrance talking on a cell phone and walking towards an automatic teller machine (ATM). Doe identified defendant as the man who had molested him. Doe testified he had not seen a cell phone in defendant’s hand in the restroom.
That evening, Detective David Rowe of the Ontario Police Department interviewed defendant at the police station. Defendant waived his Miranda rights and agreed to talk. Defendant told Detective Rowe that defendant had entered the restroom while trying to make a call on his cell phone. He stood at the urinal next to Doe to get better reception. Doe was masturbating at the urinal and had an erection. When Doe saw defendant, Doe became startled.
From Miranda v. Arizona (1966) 384 U.S. 436.
Defendant then said that Doe had not been masturbating but had finished using the urinal and was shaking the urine from his penis. Defendant, who had used the urinal next to Doe, grabbed the lever to flush it. Doe got startled and left the restroom. Defendant denied touching Doe or getting down on his knees. Defendant refused to provide a DNA sample. A videotape of defendant’s police interview was played for the jury, and a transcript of the videotape was introduced into evidence.
Certified court documents were introduced showing that in January 1990, defendant had been convicted of committing a lewd act on a child under the age of 14, in violation of section 288, subdivision (a).
B. Defense Evidence
Four character witnesses, including three who had done volunteer work with defendant and a fourth who had worked with defendant, testified they had never seen defendant do anything immoral, strange, or illegal. None of the witnesses had known about defendant’s prior conviction.
Defendant testified in his own behalf. He admitted he had not been completely honest with Detective Rowe during the interview. Defendant testified he had in fact touched Doe, but it had been an accident. He had gone to the mall to buy a new cell phone, and he went into the restroom to try to get the battery cover to stay on the new phone. While defendant was standing at the urinal, the battery cover flew off in Doe’s direction. When the cover was in the air, next to Doe’s stomach, defendant grabbed for it, and in doing so, his hand hit Doe’s penis. Defendant said, “[O]h, excuse me, I’m sorry.” Doe backed up with a shocked look on his face. The battery cover landed on the floor, next to Doe’s foot. Defendant bent down to pick it up. By then, Doe was gone. Defendant denied saying anything about going to JCPenney.
C. Jury Verdicts and Sentence
The jury found defendant guilty of violating section 288, subdivision (a), and found the prior sex offense allegation true. The trial court sentenced defendant to 25 years to life pursuant to the One Strike law (§ 667.61) and doubled the sentence under the Three Strikes law because defendant was a second strike offender.
III. DISCUSSION
A. Introduction of Prior Conviction
Defendant contends the trial court violated his rights to due process and a fair trial and abused its discretion by admitting evidence that defendant had been convicted in 1990 of committing a lewd act on a child under the age of 14.
1. Background
Before trial, the prosecutor sought a ruling on the admissibility of defendant’s prior conviction (1) under Evidence Code section 1108, (2) to impeach defendant’s statements during his police interview, and (3) to test the credibility of defendant, if he testified, and of defense character witnesses. The trial court noted that the prior conviction was similar to the current charge, i.e., lewd and lascivious conduct. The trial court found the prior conviction relevant to show propensity, to the credibility of the victim, to defendant’s intent, and to his identify. The court noted that the prior conviction was over 16 years old, but that case law has allowed for admissibility of even more remote convictions. The court noted that defendant had pleaded guilty to the prior offense, thus establishing certainty that defendant was actually the one who had committed the prior offense. The court stated that jury confusion would be minimized by jury instructions and by limitations on the type of evidence used to establish the prior conviction. Finally, the trial court balanced the prejudice from the evidence against its probative value. The court observed that the prior conviction was no more inflammatory than the current charges, and the prior conviction was for relatively similar conduct — touching the penis of an 11-year-old stranger, and the more similar the conduct, the more relevant it becomes. The court found that admitting the prior conviction through documentary evidence would not consume an undue amount of time. After weighing all those factors, the trial held the evidence would be admissible under Evidence Code sections 352 and 1108.
2. Standard of Review
A trial court’s decision to admit or exclude propensity evidence under Evidence Code sections 352 and 1108 is reviewed for abuse of discretion, and we will disturb the trial court’s ruling only on a clear showing of abuse of discretion. (People v. Greenberger (1997) 58 Cal.App.4th 298, 352; People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
3. Analysis
Evidence Code section 1108, subdivision (a), allows evidence of other sexual offenses to show a defendant’s propensity to commit those acts. Defendant acknowledges that the California Supreme Court has upheld the constitutionality of Evidence Code section 1108 on its face, (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta)), but he also argues that the Falsetta analysis was “fundamental[ly] flaw[ed].” Defendant contends that admission of his prior conviction under Evidence Code section 1108 violated his federal constitutional right to due process and led to a fundamentally unfair trial.
“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.” (Evid. Code, § 1108, subd. (a).)
The court in Falsetta specifically rejected a due process challenge to the constitutionality of Evidence Code section 1108. (Falsetta, supra, 21 Cal.4th at pp. 917-919.) The court held that due process was satisfied by the requirement that, before admitting evidence of prior acts, the trial court engage in a careful weighing process under Evidence Code section 352. (Falsetta, supra,at pp. 917-919.) We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant argues, however, that even if Evidence Code section 1108 is constitutional on its face, it was unconstitutional as applied in his case. In United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, the court recognized that use of propensity evidence might violate the right to a fair trial if such evidence “is of no relevance, or its potential for prejudice far outweighs what little relevance it might have.” (Id. at p. 1027.) The court nonetheless held, based on a balancing of factors relating to probativeness and potential prejudice, that the admission of propensity evidence in that case was not an abuse of discretion. (Id. at p. 1030.)
In California, for evidence to be admissible under Evidence Code section 1108, subdivision (a), it must not be unduly prejudicial under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Thus, the trial court must weigh whether the probative value of the evidence “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.” (Evid. Code, § 352.)
In conducting the weighing process under Evidence Code section 352, the trial court must consider the “nature, relevance, and possible remoteness,” of the proffered evidence, “the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Under Evidence Code section 352, the term “prejudice” “‘“is not so sweeping as to include any evidence the opponent finds inconvenient.”’” (People v. Branch (2001) 91 Cal.App.4th 274, 286.) Rather, evidence is unduly prejudicial for purposes of Evidence Code section 352 only when it “‘“‘uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.’”’ [Citations.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1119.)
We observe that other courts have upheld the admission of evidence under Evidence Code sections 1108 and 352 in circumstances substantially similar to those of the present case. In People v. Wesson (2006) 138 Cal.App.4th 959, the court found no abuse of discretion in the admission, in the defendant’s current trial for sodomy by force, of a 13-year old prior conviction for forcible oral copulation and sexual battery. (Id. at pp. 970-971.) In People v. Branch, supra, 91 Cal.App.4th at p. 285, the court found no abuse of discretion in the admission of a substantially similar 30-year-old offense in the defendant’s current trial for molesting a young relative.
Here, the trial court articulated a detailed and thorough weighing process that touched on all the factors articulated in Falsetta. Although defendant goes through each of those factors and offers an interpretation opposite to that of the trial court, our task on appeal is not to reweigh the Falsetta factors, but merely to review the trial court’s ruling for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 832-833.) We conclude the prior offense evidence was highly relevant on at least four issues besides propensity: (1) the hotly contested issue of intent (see Evid. Code, § 1101, subd. (b)); (2) the issue of identity (see ibid.); (3) the issue of the credibility of the character witnesses, who were asked if their opinions of defendant would change if they knew about his prior conviction (see People v. Marsh (1985) 175 Cal.App.3d 987, 992); and (4) defendant’s credibility, both in his trial testimony and in his conflicting statements to the police (see People v. Burch (2007) 148 Cal.App.4th 862, 866-867). Moreover, the evidence of the prior offense was no more inflammatory than the evidence of the charged offense. We conclude this was not a case in which introduction of propensity evidence led to a fundamentally unfair trial. The trial court’s ruling did not “‘“fall[] outside the bounds of reason” under the applicable law and the relevant facts. [Citations.]’” (People v. Garcia (1999) 20 Cal.4th 490, 503, italics omitted.)
Finally, defendant contends that Judicial Council of California Jury Instructions, CALCRIM No. 1191, was inadequate to eliminate the risk of prejudice from admission of evidence of his prior offense. In People v. Cromp (2007) 153 Cal.App.4th 476, 479-480, the court rejected a similar challenge to CALCRIM No. 1191, relying on People v. Reliford (2003) 29 Cal.4th 1007, 1012-1015, which had likewise rejected a challenge to the substantially similar language of CALJIC No. 2.50.01. We similarly reject defendant’s challenge.
B. Request to Dismiss Prior Strike
Defendant contends the trial court abused its discretion by failing to strike defendant’s prior sex offense.
1. Background
Defendant requested the trial court to dismiss his prior strike conviction in the interest of justice under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion, stating, “I have reviewed . . . defendant’s history, criminal history that dates back actually to 1987. And it continues with this most recent conviction to weigh heavily biased in terms of sexual offenses. And I don’t believe that under those circumstances that Romero Motion would be appropriate at this time.”
2. Standard of Review
A trial court has the power to dismiss one or more prior strike convictions in the interest of justice. (People v. Romero, supra, 13 Cal.4th at pp. 529-532.) We review the trial court’s decision whether to do so under the deferential abuse of discretion standard. (Id. at pp. 529-530.) When determining whether to strike a prior, the trial court must consider “the constitutional rights of the defendant, and the interests of society represented by the People.” (People v. Williams (1998) 17 Cal.4th 148, 159, italics omitted.) In reviewing the trial court’s decision, we ask “‘whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts. [Citations.]’” (People v. Garcia, supra, 20 Cal.4th at p. 503, italics omitted.)
3. Analysis
Defendant argues the trial court relied solely upon his criminal history in declining to dismiss his prior strike, without regard to the nature of the current offense, and “[i]f it were just the criminal history that determined whether to exercise discretion, no person with that criminal history would ever be spared the harshest sentence possible under the Three Strikes law.” However, the trial court stated that defendant’s history of committing sex crimes “continues with this most recent conviction.” The trial court’s remark makes clear the trial court was considering the totality of the circumstances, including past and present conduct.
In 1988, defendant was convicted of a misdemeanor violation of section 647, subdivision (a), for soliciting a lewd act. Defendant incurred his strike conviction in January 1990 for lewd and lascivious conduct on a child under the age of 14 (§ 288, subd. (a)) and was sentenced to prison for three years, but was paroled in June 1991. He was convicted of possession of a dangerous weapon (§ 12020, subd. (a)) in March 1993 and was sentenced to prison for 16 months. He was convicted of indecent exposure (§ 314.1) in December 1997 and was sentenced to prison for 32 months. He was convicted of two counts of failure to register as a sex offender (§ 290, subd. (a)(1)(A)) in 2003 and was sentenced to 36 months’ probation. He violated his parole in May 2001 and reported being released from prison in July 2004.
Defendant asserts that he “stayed out of trouble for more than 10 years after his release from prison in 1991 or 1992.” The probation report, as discussed above, belies that contention — he had felony convictions in 1993 and 1997 for which he was sentenced to prison. Defendant is thus “‘an exemplar of the “revolving door” career criminal to whom the Three Strikes law is addressed.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 379.) The trial court did not abuse its discretion in denying defendant’s request to strike his prior strike offense.
C. Cruel and Unusual Punishment
Defendant contends his sentence of 50 years to life constituted cruel and unusual punishment under the California and federal Constitutions.
1. State Law Challenge
Under state law, “A sentence may violate the state constitutional ban on cruel and unusual punishment (Cal. Const., art. I, § 17) if ‘“. . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” [Citations.]’” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88).
The court in In re Lynch (1972) 8 Cal.3d 410, articulated a three-pronged analysis for determining whether a sentence constitutes cruel and unusual punishment. First, the examines the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (Id. at p. 425.) Second, the court compares the challenged punishment with punishments for more serious crimes in the same jurisdiction. (Id. at pp. 426-427.) Third, the court compares the challenged punishment with punishments for the same offense in different jurisdictions. (Id. at pp. 427-429.) “This three-pronged analysis provides guidelines for determining whether a punishment is cruel or unusual. The importance of each prong depends on the facts of each case. An examination of the first prong alone can result in a finding of cruel or unusual punishment. [Citations.] Regarding the other prongs, defendant bears the burden of proof. [ Citation.]” (People v. Thongvilay, supra, 62 Cal.App.4th at p. 88.)
The California Supreme Court has also held that, provided a punishment is proportionate to the defendant’s individual culpability, there is no requirement it be proportionate to the punishments imposed in other similar cases. (People v. Webb (1993) 6 Cal.4th 494, 536.) In other words, a determination of whether a punishment violates the state constitutional prohibition against cruel and unusual punishment may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
Defendant’s recidivist history, as set forth above, justifies his current sentence. (People v. Ayon, supra, 46 Cal.App.4th at p. 399 “[r]ecidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses”].) In People v. Estrada (1997) 57 Cal.App.4th 1270, 1277-1282, for example, the court upheld a life sentence for forcible rape and burglary with intent to commit forcible rape. The court held that the punishment under section 667.61, subdivisions (a), (c), and (d) was not cruel or unusual because that statute was specifically tailored to fit crimes bearing certain characteristics. The court stated its analysis did not change merely because the penalties for sex offenses were more serious than the penalties for some homicides. (People v. Estrada, supra, at pp. 1281-1282.)
Here, defendant in his current offense groped a young boy’s penis in a public restroom and tried to entice the boy to go to another restroom, apparently to continue the molestation in a more private setting. Defendant had prior convictions for sex offenses, including a lewd act against another young boy and a weapons offense. Under these circumstances, defendant’s 50-years-to-life sentence does not shock the conscience.
2. Federal Constitutional Challenge
A plurality of the United States Supreme Court held in Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108] (plur. opn. of O’Connor, J.) (Ewing) that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. The court held that the Eighth Amendment did not prohibit a sentence under California’s Three Strikes law of 25 years to life for a defendant who shoplifted golf clubs worth about $1,200, because seven years earlier the defendant had been convicted of three residential burglaries and one first degree robbery. (Ewing, supra, 538 U.S. at pp. 17-18, 29-30.) Two other justices concurred in the result on the basis that the Eighth Amendment does not contain any proportionality guarantee at all. (Ewing, supra, at pp. 31 (conc. opn. of Scalia, J.), 32 (conc. opn. of Thomas, J.).)
The Ewing plurality further stated that “‘[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Ewing, supra, 538 U.S. at p. 21 (plur. opn. of O’Connor, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 73 [123 S.Ct. 1166, 155 L.Ed.2d 144 (Lockyer)] [gross disproportionality principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case”].) The court stated, as an example of a successful challenge, that the proportionality principle would come into play “‘if a legislature made overtime parking a felony punishable by life imprisonment.’” (Ewing, supra, at p. 21.)
Neither Ewing nor Lockyer required that, if the reviewing court concludes a sentence is not grossly disproportionate to the crime, it nevertheless must compare the sentence to the sentences for other crimes in the same jurisdiction, or for the same crime in other jurisdictions. Therefore, it appears that under the Supreme Court’s most current interpretation, the Eighth Amendment requires only the equivalent of the analysis that makes up the first part of the Lynch test. (But see People v. Carmony (2005) 127 Cal.App.4th 1066, 1076-1084 [applying three-part analysis under Eighth Amendment].) As we have already found no cruel or unusual punishment under that analysis, we hold, for the reasons previously stated, that defendant’s sentence also did not violate the Eighth Amendment.
D. Use of 1990 Conviction
Defendant contends the trial court impermissibly used his 1990 conviction for lewd acts on a child both to calculate his minimum term under the One Strike law and to double that term under the Three Strikes law. Defendant acknowledges that the California Supreme Court rejected this argument in People v. Acosta (2002) 29 Cal.4th 105 (Acosta), but defendant argues that Acosta was wrongly decided and should be revisited. We are bound by the Supreme Court’s ruling in Acosta. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp. 455-456.) We therefore reject defendant’s argument.
E. Correction of Abstract of Judgment
Defendant notes that although the trial court sentenced him to 25 years to life on the underlying conviction and doubled that term under the Three Strikes law, the abstract of judgment erroneously reflects an additional concurrent sentence of 25 years to life. The People agree that the abstract of judgment must be corrected to conform to the oral pronouncement of judgment.
IV. DISPOSITION
The trial court is directed to modify the abstract of judgment to conform to the court’s oral pronouncement of judgment and to send the modified abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., GAUT J.