Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF005986. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Rex Williams, 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, Steve Oetting and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Jose Dejesus Gomez appeals after he was convicted by a jury of two counts of committing a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)). He contends that the trial court erred in admitting evidence of prior uncharged conduct. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The victim, K., is defendant’s son. Defendant’s stepdaughter, S., is K.’s half sister. The mother of both children, Anna O. (mother), was married to defendant from 1994 to 1999. Defendant and mother were also briefly remarried for a few months in 2005, and they had lived together off and on throughout the period. They also shared custody of K. on alternating weekend schedules.
Count 1 concerned an incident that took place in May 2007. Defendant picked up 13-year-old K. for a planned trip to San Diego. Defendant stopped in Temecula and checked them into a motel, saying he was too tired to drive any further. K was surprised because, when he and mother had gone on trips with defendant, defendant would drive for hours. After they checked into the motel, defendant and K. went to get snacks. They then returned to the motel room.
Later that evening, when K. was ready to go to bed, he lay down fully clothed while watching television. Defendant also got into bed, wearing only boxer shorts. K. eventually fell asleep, but he awoke when he felt defendant grabbing his buttocks. Defendant also touched K.’s crotch and penis over K.’s clothing. K. moved to the side of the bed.
The next day, defendant and K. went to San Diego. Defendant and K. got into an argument at a restaurant, and defendant decided to take K. home.
The second charge arose out of an incident in June 2007. K. had gone to defendant’s house for his usual after-school visitation. K. was lying across defendant’s bed, watching television, when defendant came up and grabbed K.’s buttocks several times. K. pushed defendant’s hand away. He also noticed that defendant appeared to have an erection.
K. eventually told mother about the incidents; mother reported the matter to police. Mother testified that she took K. to the police because of a similar complaint that S. had made in 1999.
At trial, S. testified about an uncharged incident that allegedly took place in 1999, when S. was 13 years old. At the time, S. was living with mother and defendant in the family home. Defendant, saying he was sick, or something to that effect, called S. into the bathroom and exposed himself to her. Defendant threatened to kill S. if she told mother. However, S. did report the incident to mother later that week. When mother confronted defendant about the incident, defendant explained that he had showed S. “a little bump, a little ball” on his genitals.
S. testified that defendant and mother had married when S. was about 10 years old. Defendant treated S. like a daughter and was affectionate with her, but S. felt uncomfortable because defendant sometimes would kiss her forcefully on the mouth. Defendant would also touch S. on the upper thigh when she did not return his affection.
Defendant testified in his own behalf at trial. He and mother were married in 1994. After separation, he lived nearby, about two or three blocks away, until they remarried in 2004. They divorced again in 2005. Defendant had a good relationship with his son, K., but not with mother. Defendant hugged and kissed his son, but admitted that he did so sometimes with too much force.
Defendant testified as to the incident in May 2007. On the day defendant picked up K. for a weekend visitation, K. appeared troubled and angry. When K. had turned 13, he started telling defendant that he could put defendant in jail if defendant hit him. That weekend, he had intended to take K. to visit a mine, but when they arrived, the mine was closed. Defendant checked them into a motel. He had requested a room with two beds, but none was available, so he booked a room with a king-size bed.
Defendant and K. went out for snacks and returned to the room. K. wanted to wrestle, but defendant demurred, saying that K. was getting too old for that. They watched television instead, and then went to sleep. K. was curled up on the bed. Defendant may have hit K. on the side of his buttocks, in an affectionate manner while saying that defendant wanted to go to bed too. Defendant denied touching K.’s penis, and he never pinched K.’s buttocks except perhaps when playing or chasing each other.
The next day, defendant and K. completed their visit to the mine and proceeded to San Diego. They watched ships and ate. Then they got into an argument, and defendant decided to take K. home.
As to the incident in June 2007, defendant described that he had picked up K. from school for his normal Tuesday and Thursday visitation. K. lay across the bed watching television while defendant worked at the computer. As before, defendant claimed he had merely slapped K. on the side of his buttocks to say he was going to nap until it was time to take K. home, and asked K. to wake him then. Defendant put his arm around K.; K. told defendant not to hug him, and said, “‘You’re gay.’” Defendant admonished K. for speaking disrespectfully, and asked why K. would say such a thing. K. accused defendant of touching K.’s “‘pee-pee.’” Defendant denied any inappropriate touching, although his hand may have brushed K. when K. pulled away from him.
Defendant also testified that he is impotent and could not have had an erection during either of the incidents in May or June 2007.
In response to S.’s trial testimony, defendant offered the explanation that S. had walked in on him when he was using the toilet.
Defendant was charged with two violations of section 288, subdivision (a), one for each of the incidents in May and June 2007. The jury found defendant guilty on both counts.
Defendant moved for a new trial on the grounds of insufficiency of the evidence and erroneous exclusion of defense evidence. The trial court denied the motion. The court considered the probation officer’s report and placed defendant on probation for three years, under specified terms and conditions.
Defendant now appeals.
ANALYSIS
I. Standard of Review
The main thrust of defendant’s claim is that the trial court erred in admitting S.’s testimony about an earlier, uncharged incident. A trial court has broad discretion over the admission and exclusion of evidence; accordingly, we review the trial court’s evidentiary rulings under an abuse of discretion standard. (See People v. Cole (2004) 33 Cal.4th 1158, 1195 [concerning Evid. Code, § 1101]; see also People v. Davis (2009) 46 Cal.4th 539, 602 [same].)
Defendant also urges in passing that the admission of the evidence violated his right to due process. He does not develop this claim, however, and we do not address it in detail. We note, however, that in People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court held that admission of propensity evidence under Evidence Code section 1108 does not violate due process principles. (Falsetta, at p. 922.)
II. The Trial Court Did Not Abuse Its Discretion in Admitting S.’s Testimony
Defendant argues that admission of S.’s testimony was erroneous in several respects: the alleged conduct was not itself a sex offense, so it indicated no propensity to commit sex offenses; the nature of the conduct was dissimilar to the charged offenses; the conduct was remote in time; and the evidence was highly prejudicial without being probative.
S. testified that defendant called her into the bathroom and showed his testicles to her. Defendant contends that, “While any person who lewdly exposes his genitals commits a sexual offense within the meaning of section 1108[, ] nothing indicates [defendant] lewdly exposed himself to [S.]. [S.] testified [defendant] was in the bathroom and stated he was ill. He asked her to look at his testicles.... This does not establish a sexual offense listed in section 1108.” To the contrary, the evidence describes circumstances supporting a reasonable inference that defendant lewdly exposed himself to S. Defendant, an adult, could not reasonably expect his (then) 13-year-old stepdaughter to provide any medical assistance with the “little bump” he so urgently wanted to show her on his genitals. In fact he asked for none. There was no proper, legitimate reason for him to act as he did. The evidence was sufficient to establish a prior uncharged sexual offense within the meaning of section 1108.
While the uncharged conduct had occurred several years before the charged offenses (approximately 10 years earlier), its remoteness was only one factor to consider in the calculus of admissibility. (See People v. Falsetta, supra, 21 Cal.4th 903 at p. 917 [“[T]rial judges must consider such factors as [the] nature [of the prior offense], [its] 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....”].) “[F]ive factors stand out as particularly significant in an Evidence Code section 1108 case. These factors are (1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time.” (People v. Huy Ngoc Nguyen (2010) 184 Cal.App.4th 1096, 1117.) The incident may or may not be considered “remote.” Although they took place about 10 years apart, a common factor was the approximate age of each child (13) at the time of the incidents. (See People v. Harris (1998) 60 Cal.App.4th 727, 739 [no “bright-line” rule of remoteness exists, and 23-year-old information was properly admitted].)
The other factors to be considered here did militate in favor of admissibility.
Defendant urges, for example, that the offenses were not similar because S. did not testify that defendant grabbed her buttocks or touched her genitals, as K. had alleged. However, other aspects of the situations were similar. In both cases, the victims were of a similar age. K. was defendant’s biological child and S. was defendant’s stepchild. Each child had lived for substantial periods in defendant’s household. Defendant, a person in a position of trust, abused that position to gain private access to the children (in a bedroom or bathroom), and cooperation from them, for the purpose of satisfying his own sexual desires. Defendant subjected both children to inappropriate, forceful embraces or kissing, as well as unwanted touching.
The propensity evidence was not stronger and more inflammatory than the evidence of the charged acts, which involved serious sexual conduct: grabbing K.’s buttocks, and his penis and crotch area. S.’s testimony did not consume undue time. The evidence was also unlikely to distract the jury from the inquiry into the present charges, or to induce the jury to convict defendant based on past offenses rather than for the charged acts. The past conduct was different, and involved a different victim. The trial court had given limiting instructions, which the jury presumably followed. (People v. Gray (2005) 37 Cal.4th 168, 217.) Under all the circumstances, the trial court did not abuse its discretion in determining that the probative value of the evidence outweighed its prejudicial value, and in admitting S.’s testimony.
Even if the evidence had been excluded, it is not reasonably probable that a more favorable verdict would have resulted. (People v. Watson (1956) 46 Cal.2d 818, 836.) K. testified in detail about the incidents defendant perpetrated against him. For instance, at the motel, K. described how defendant grabbed his butt from behind, and then shifted his hand in front to K.’s penis when K. tried to move away. K. stated that, whenever defendant lay with someone, defendant always tried to pull the person closer. In the later incident, defendant grabbed K.’s butt again, in such a way that K. felt extremely uncomfortable with his own father; he wanted to leave defendant’s home right away and go back to mother’s house. K. was so distressed that he confessed what had happened to his mother, because he could not “hold[] it in” any more. Mother also noticed a profound change in K.’s behavior and attitude toward defendant, and their relationship had altered. A family law mediator concluded that K. was afraid to be with his father.
For the reasons stated, we find no error in the admission of the evidence, and no prejudice in any event.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., KING, J.