Opinion
E063547
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. GENARO GONZALEZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB805021) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Genaro Gonzalez appeals from a judgment entered after a jury found him guilty of 12 counts of committing lewd acts on his three stepdaughters over a period of several years when they were between six and 13 years old. At trial, in addition to the testimony of his stepdaughters about the charged acts, the trial court allowed two women to testify Gonzalez had sexual contact with them when they were 13 years old and he was 26 years old, resulting in his prior conviction for statutory rape.
Gonzalez contends the trial court abused its discretion by admitting the evidence of his prior offense because its prejudice substantially outweighed its probative value. He also contends the trial court erred in instructing the jury on how to consider the evidence of his prior offense.
We affirm.
I
FACTUAL BACKGROUND
The District Attorney of San Bernardino County filed an information charging Gonzalez with 18 counts of lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); counts 1-7, 9-15, 19-22) and four counts of sodomy by force (§ 286, subd. (c); counts 8, 16-18). The information also alleged there was substantial sexual conduct and more than one victim. (§§ 1203.066, subd. (a)(7) & (8); 667.61, subds. (a), (b) & (e).)
Unlabeled statutory citations refer to the Penal Code.
The charges arose from Gonzalez's treatment of the three daughters of B.L., whom Gonzalez married in October 1999. When the relationship began, B.L. had five children—three daughters and two sons. All seven lived together from around 1999 until 2008. For about a year, the family lived in a two-bedroom apartment in Fontana, with Gonzalez spending part of his time there. They then moved to a three-bedroom house in Fontana, where they lived for less than a year. After that, they lived in a three-bedroom manufactured home in Grand Terrace.
In 2008, B.L.'s three daughters accused Gonzalez of serial sexual abuse over nine or 10 years. The daughters were approximately four, six, and eight years old when Gonzalez moved in with them and 13, 16, and 18 years old when they accused him and he moved out. All three testified against Gonzalez at trial, by which time they were 20, 22, and 24 years old.
A. Testimony of the Three Abuse Victims
1. The middle daughter
The middle daughter, K., said the abuse began when she was six years old, right after Gonzalez started staying at the Fontana apartment. At first, he rubbed her genital area through her pants. Later, he began putting his hands inside her pants and inserting his finger inside her vagina. She said this happened several times. K. said the touching continued when they moved into the Fontana house, and it was then he first started having intercourse with her.
The first time Gonzalez had intercourse with her, K. said, her mother was at work. "We were inside my mom's room and he took off my clothes, and he told me to be quiet and to lay down. And he stuck his penis in my vagina until he ejaculated." She said the penetration hurt. She knew he ejaculated "because I felt it on my leg" and "it felt nasty. It was slimy. That's what I remember." She was eight or nine years old. Gonzalez covered her mouth with his hand, but she said she was too scared to scream for help and feared he would hurt her. Afterward, "[t]here was blood on the sheets, so he got the sheets and he went to go throw them in the washer." Gonzalez told K. not to tell anybody and "said if I did that my family wouldn't make it without him and my mom wouldn't believe me."
K. said Gonzalez continued having intercourse with her when she was nine. She said they had sex more than one time a month and more than 10 times overall. The abuse stopped for a time when she was nine years old because she hurt her leg and doctors put it in a cast.
Gonzalez resumed the abuse when they moved to Grand Terrace. K. told of one incident when she was still nine years old. "[W]e were in the rest room and my mom was home, and I was just getting out of the shower, and he was using the rest room I think." K. said Gonzalez "got me on the counter, and he was trying to shove his penis into my vagina but I was getting scared because my mom was home, and I kept telling him no, not to. [¶] . . . [¶] I was crying." She said, he "put me on the floor and he was covering my mouth so nobody could hear me cry, and then I just remember him stopping."
K. said Gonzalez also tried to force anal intercourse on her. The first time, she was in her mother's bathroom "and he wanted to try to put his penis inside of my anal—my butt, my bottom." She said his penis penetrated her anus a little and she felt "a lot of pain, like I was ripping." She "told him to stop," but he did not. K. said she was crying and her mother heard her and interrupted by knocking on the door. Gonzalez told her mother she was crying because she "had seen a bug or something." She said she experienced bleeding from her anus for about a week afterward. She said Gonzalez tried to force anal intercourse on her on other occasions. Once, she said, "We were in his room on the floor and he kept trying to stick it into my behind, and then when he did I was crying too much so he stuck it into my vagina so it doesn't hurt me anymore." She said that was the last time he tried to have anal intercourse with her.
According to K., Gonzalez also made a practice of forcing her to fellate him. She described the first occasion, which occurred when she was 12 or 13. She said, "He wanted to feel my mouth on his penis when he was driving." "[W]e were pulling out of the gas station and he started to drive," but "my teeth bit into his penis, not purposely, but on accident, and he got mad and we just drove off." After that, he would force her to fellate him "[w]henever we would be by ourselves going to the store." She said it happened "pretty often" and more than five times.
K. told of how Gonzalez frequently retrieved her for sex from her room at night. She said "he went into my room trying to wake me up during the night before my mom got off work. And he would try to wake me up, and when I would wake up, we would lay behind the couch. We had a leather couch in our mobile home, and the couch was set up by the door so we would lay behind the couch and just by the doorway." She said he woke her in the night like that "[s]everal, several times." She recounted an incident when she was 15 and Gonzalez sought intercourse in exchange for having bought K. a purse. He told her "you need to get up. You owe me." That time, K. fellated Gonzalez and had vaginal intercourse with him. Another time, when she was 16, she said "he tried waking me up, and he was pulling my hair, and I was pretending I was asleep. He told me, if you don't get up, I'm going to wake up your sibling—my little sister. I'll get it from her." She said she got up and had intercourse with him behind the couch.
By that time, K. knew Gonzalez was abusing her sisters too. First, she found out he was abusing her oldest sister. She said, "I found out because [Gonzalez] went into the rest room with [the sister] and she was taking a shower and I just heard her crying and it clicked to me. I'm not stupid and I assumed, and I told her. I said, What was he doing to you, and she was just crying. I asked her if he was touching her, and she told me yes."
Months later, her brother "told me that he seen [Gonzalez] lying on top of [the youngest sister] and she was crying." So K. "asked her, you know, what was going on, and she tried to lie to me. And I told her, [their brother] seen [Gonzalez] on top of you." Her sister "started crying, and she kept saying no, nothing's going on. Nothing's going on. And I told her it was okay to tell me; I wouldn't tell my mom, and she told me yeah, he was touching her." The youngest sister was 13 at the time.
About five months after learning about her youngest sister's abuse, K. disclosed Gonzalez's conduct. K. went out to dinner with Stephanie Rivera, the wife of the family's pastor, who worked as a school psychologist. She told Rivera about the abuse, and Rivera took K. home and asked the mother to talk to K. in the car. First K. disclosed the abuse, then the youngest sister did too. Rivera confirmed K.'s story to the jury. Later that night, Gonzalez told K. he was sorry and said "he should have never done anything he done to us and that he wants us to forgive him." Gonzalez left the house that night and that was the last time she saw him before trial.
Her sister said the disclosure happened a couple weeks after K. learned of the abuse. --------
2. The youngest daughter
The youngest daughter, S., said Gonzalez began abusing her when she was six years old. At first, he rubbed her genital area through her clothes. She said he did this one time while they lived in the house in Fontana. However, when they moved to Grand Terrace he started having intercourse with her while she was still six years old.
The first time Gonzalez had intercourse with her, S. was getting ready for school in her walk-in closet. She said he came into the closet and began rubbing on her genitals underneath her clothes. She said he then "started touching me, and then he pulled my pants down and tried to force [his penis] in [her vagina] but it wouldn't go in. I was crying, telling him to stop; that it hurt. He kept telling me it's almost in." That first time, she said, his penis just pushed up against her vagina, but did not penetrate her. S. said "a couple weeks later he did it again." That time, Gonzalez penetrated her and she started bleeding. Gonzalez "took me to the bathtub and tried to clean me off." The bleeding stopped and she went to school. A third time, "[h]e dragged me out of the shower . . . and forced himself on me in the middle of the hallway." She said "[h]e dragged me down and got on top of me" and "inserted his penis in my vagina."
S. said Gonzalez had intercourse with her on many other occasions. She did not remember precisely how many times he did so, but said it usually happened once a week or more. She said he usually would get her from her bedroom and take her to his bedroom if her mother was at work or to the living room. Before trying to engage in coitus, he would either put his mouth "on my vagina or spit on his hand and rub it on my vagina." When she told him he was hurting her, "He would just say suck it up."
Gonzalez told S. he would leave her family stranded if she ever told what he was doing, and "he would leave us stranded on the street and we will be poor." She believed him, but eventually told her older sister, K. She told her pastor's wife and her mother a couple of weeks after she told her sister. According to S., when her mother asked Gonzalez to send S. out of the house to talk to the pastor's wife, he "beg[ed] me not to say anything because he could get in trouble." Later, after the sisters had disclosed his abuse, Gonzalez apologized and left the house.
3. The oldest daughter
The oldest daughter, C., said Gonzalez began abusing her when she was 10 years old, after they had moved into the Fontana house. Again, he began by rubbing her genital area through her clothes. This happened a few times at the Fontana house. C. said Gonzalez started having sexual intercourse with her after they moved to Grand Terrace.
The first time Gonzalez had intercourse with C. was in the fall of the year she started the fifth grade. He came to her in the morning before school. She said, "he just woke me up to go in the room with him and he just started pulling my—wanting to have sex with me so he took off my clothes." She said, Gonzalez took off his clothes, "got on top of me and started having sex with me." She said, he put his penis in her vagina and moved it in and out until he ejaculated. She told him it hurt, but he did not respond.
After the first incident, Gonzalez started having intercourse with her approximately three or four times a month. She said, "I would tell him that I didn't want to do it anymore; that I wanted him to stop and I would tell. He would tell me no one would believe me and that me and my family would be on the streets and have nowhere to go." C. said she believed Gonzalez and was afraid of him. After they had intercourse, she said, "he would buy food or give me money," which she assumed he did "to keep us quiet." There were times C. told him she would not have sex with him, but he would do it anyway.
Sometime in 2007, she said she asked him to stop, "and he did because I was never really home. She said she stopped going home" [b]ecause I didn't want to be home anymore because I didn't want that to happen."
C. also testified Gonzalez apologized and then left the house the night her sisters reported the abuse. She did not see Gonzalez again until trial.
B. The Mother's Pretext Call
After Gonzalez left the Grand Terrace house, he fled to Leon Guanajuato, Mexico. Law enforcement asked the girls' mother to maintain telephone contact with Gonzalez to help them find him. Eventually, they arranged a pretext call to try to get Gonzalez to admit his misconduct. Detective Burgraff arranged and testified about the call, a recording of which the prosecution played for the jury.
On the call, the mother told Gonzalez she had not gone to the police and tried to convince him they could work things out as a family if he would only admit what he had done and promise not to do it again. She said "I really need you to give me some answers because it, I mean are you sorry that you did it?" The recording of Gonzalez's answer was garbled and he and the mother talked over each other repeatedly, but he answered "I'm really sorry" and "Of course [B.L.], I'm deeply, deeply, I mean me [B.L.]."
Gonzalez neither plainly admitted nor plainly denied having intercourse with K.; his responses were slippery. Gonzalez appeared to claim K. initiated the sexual contact and he responded because he thought it was B.L. B.L. said "you said" K. "went in the room and that you thought it was me. [Did] you really think that was me or were you asleep or?" Gonzalez responded, "I swear to God I woke up like that. That's how it started." He said K. came into the room and "[l]aid down, I was already laying down" and "I don't know what I did, I thought it [w]as you rubbing up against me." Later, discussing what they might tell the authorities, Gonzalez said, "I wanted you to tell [th]em what, how it happened like one time I was in bed and it was something that hap[pened][;] I'm not even aware of and that's where we're getting confused and that's what [K.] should just tell [th]em." In the end, Gonzalez said he had apologized to K. B.L. asked, "Did you tell [K.] you were sorry for doing what you did?" Gonzalez responded, "Of course I did, we cried."
Gonzalez was more resistant to admitting any sexual conduct with S. and C. Again, he neither plainly admitted nor plainly denied having sexual contact with them. B.L. said, "[S.] told me that she was in the shower and that you drug her out of there and that you threw her on the floor and you forced her to have sex with you. Is that true?" He responded, "I don't even remember that. No." B.L. asked, "You went from one kid, from" C. to K. to S. "and for this long. For how long, you said five years. She says 10 years, who's telling the truth? You had sex with my girls for how long?" Gonzalez responded, "Actually, I don't even remember when [K.] is part of that time when we were living there at that house already and I don't know how long. . . . [¶] . . . [¶] So it hasn't been no 10 years." B.L. pressed him, "How long then? How long then?" Gonzalez shifted the focus back to K., saying "I don't remember when it happened with [K.]" He continued, "I think [S.], we were something with [K.] because she used, I didn't think well (unintelligible) . . ." He admitted, vaguely, "I should not have did it, I shouldn't not have ever done that." B.L. pressed him to be more specific, but Gonzalez said only "I would never want this, never something I wanted or wished for nobody."
C. Testimony About Gonzalez's Prior Conviction for Unlawful Sexual Intercourse
The trial court determined evidence of uncharged sexual misconduct by Gonzalez was admissible under Evidence Code sections 1108 and 352. Specifically, the court allowed the prosecution to present the testimony of two women who said they had engaged in consensual sexual contact with Gonzalez when they were 13 years old and he was 26 years old. The trial court "found [the evidence] was relevant and not unduly prejudicial in terms of the circumstances as compared to the charged circumstances. It was not remote in terms of the relation to the crimes charged in this case. And it is relevant to the issue of intent and probably a couple of other issues in the case."
1. Christina's testimony
Christina testified she was 13 years old when she accompanied Gonzalez to "party" in a motel room on May 10, 1997. According to Christina, she knew Gonzalez through her mother, who worked with him. She said she thinks she met him when she was about 11 years old. According to Christina, he came to her home and spent time with her mother and also dated her older sister, who was 17 or 18 years old at the time. Christina said Gonzalez "would come over, and my mom would have him bring beer, and they would just party at my house." She said she partied and drank beer with them on a few occasions.
On May 10, 1997, Gonzalez picked Christina up in his car to "go party" and "[d]rink." Gonzalez's cousin Juan, who was 20 or 21, joined them and they also picked up Christina's friend, Patricia, who was 13 at the time. They then stopped to buy alcohol and got a room at a motel.
Christina said once they were in the room "[w]e drank and we started having sex." She said, "I was with [Gonzalez] first that night" and they had intercourse. Then the two men "both said let's call a switch. And Patricia went with him, and I was with Juan." Christina said she saw Gonzalez with Patricia and believed they were having sex. She said she thought so because she saw "him go up and down," but because they were under a sheet she "didn't see him actually have intercourse with her, but I knew that they were having sex." Christina thought they were in the room for a couple of hours. The night ended when the police arrived.
2. Patricia's testimony
Patricia testified she was 13 years old when she said she met up with her friend Christina and two men she did not know on May 10, 1997. According to Patricia, they went to a liquor store and then got a motel room. Patricia said she did not have sexual intercourse with either man and did not see Christina have sexual intercourse with them. She said "[t]here was just kissing and that was it" and that he gave her a hickey on her neck. She said her clothes remained on and he touched her genital area only over her clothes. At a certain point, she said "[m]y zipper was about to go down, but that was it." At that point, she "heard a bang on the window" and they jumped up and ran to the restroom.
D. Gonzalez's Testimony
Gonzalez testified in his own defense. He denied all wrongdoing with respect to the two 13-year-old girls and his three stepdaughters.
Gonzalez admitted he pled guilty to violating section 261.5, subdivision (c), unlawful sexual intercourse with a minor more than three years younger than the perpetrator. However, he told the jury he did not have sexual intercourse with either Christina or Patricia, and in fact denied seeing either of them without clothes. He said he simply pled guilty to something he did not do because law enforcement accused him of even worse conduct. Gonzalez admitted he received probation and one of its terms was he not be with a minor under the age of 18 unless supervised by a responsible adult who knew about the charges. He said B.L. knew about the charges.
As for his stepdaughters, he said he had no inappropriate contact with any of the three girls. He affirmed nothing inappropriate happened with any of the girls, except the one time K. came into his bed and he hugged her thinking she was his wife. According to Gonzalez, the contact went no further because "she had a real bad B.O. problem, and that's when I realized it wasn't my wife" and he "pushed her off."
E. Closing Arguments
In her closing argument, the prosecutor described the evidence of Gonzalez's prior conduct with Christina and Patricia as follows.
"You heard from Christina . . . She was thirteen years old . . . She was out drinking with the defendant in the past . . . She'd known the defendant for years. She said the defendant contacted her to meet up. She was down for it. There was nobody questioning that. He asked her if she wanted to party. Sure, she's a party girl, she's up for it. And she says she had sex with the defendant. [¶] Then what happened? She says—her testimony from the stand was the boys yelled 'switch,' and the girls were down for that, too. So they switched partners . . . [¶] She also says she saw Patricia and the defendant in the bed together under the covers, and she describes what she thought was happening, which was sex. How do you know that? 'Cause I know what was happening. It just happened to me. And it was the defendant that suggested she bring a friend . . . [T]he defendant was twenty-six years old. He's buying them alcohol, renting a motel room for thirteen-year-olds."
"You heard from Patricia. She was a bit reluctant, also. Didn't want to be here either. She says she was thirteen at the time she met up with Christina. They went to the liquor store . . . They went to a motel. She was making out with the older guy. She says she couldn't recognize him. She didn't know who, but the defendant actually said it was Patricia that he was making out with. And that's all he did. All he did was give a thirteen-year-old a hickey. Oh, and she also says that then he unzipped her pants, and I believe she said he rubbed on her vagina."
The prosecutor also pointed out Gonzalez "said he didn't have intercourse with either of the girls. Despite the fact that he pled guilty to it. But he does admit kissing and doing stuff with Patricia, who was thirteen."
The prosecutor limited her comments to recounting the evidence. She did not affirmatively argue the evidence showed Gonzalez had a propensity to engage in sexual conduct with underage girls.
Defense counsel did not mention the evidence of Gonzalez's conduct with Christina or Patricia or his conviction for unlawful sexual intercourse with a minor.
F. Jury Instruction on Prior Conviction
The trial court instructed the jury on how to consider the evidence of Gonzalez's past sexual conduct with minors. It delivered the standard jury instruction, CALCRIM No. 1191, as follows:
"The People presented evidence that the defendant committed the crime of unlawful sexual intercourse with a minor who was more than three years younger, in violation of Penal Code Section 261.5. That was not charged in this case. And the victim was thirteen years of age at the time, and the defendant was twenty-six years of age.
"This crime is defined for you in these instructions. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit lewd act upon a child and forcible sodomy as charged here.
"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of lewd act upon a child or forcible sodomy. The People must still prove each charge and allegation beyond a reasonable doubt.
"Do not consider this evidence for any other purpose except for the limited purpose of evaluating the defendant's credibility."
Counsel for Gonzalez did not object to the instruction.
G. Jury Verdict and Sentencing
The jury found Gonzalez guilty of 12 counts of committing lewd acts on a child under age 14 (§ 288, subd. (a); counts 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 19, 20) and not guilty of one count of forcible sodomy (§ 286; count 8) against K. The jury hung on six counts Gonzalez committed lewd act on a child under age 14 (counts 1, 2, 7, 15, 21, 22), and the trial court dismissed those counts on the People's motion. On the People's motion at the close of the prosecution evidence, the trial court also dismissed three counts of forcible sodomy (counts 16, 17, 18) against S. The jury found Gonzalez committed his offenses against more than one victim. (§ 667.61, subd. (e).)
The trial court sentenced Gonzalez to an aggregate term of 180 years to life in prison comprised of 12 consecutive 15-year-to-life terms imposed under section 667.61, subdivision (b) and former section 667.61, subdivision (g). The trial court made the sentences consecutive based on its finding that each count involved a separate act on a separate occasion.
II
DISCUSSION
A. Admission of Prior Statutory Rape Under Evidence Code Section 1108
Gonzalez contends the trial court abused its discretion by permitting the prosecution to present overly prejudicial evidence related to his conviction for having unlawful sexual intercourse with a 13-year-old girl in 1997, when he was 26 years old. We disagree.
Generally, otherwise admissible evidence may be introduced to prove a person's character or character trait (Evid. Code, § 1100), though not for the purpose of proving the defendant's disposition to commit a similar act (Evid. Code, § 1101, subd. (b)). (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, "[i]n 1995, the Legislature enacted [Evidence Code] section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. Subdivision (a) of that section provides in pertinent part '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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352 [permitting court to exclude evidence on weighing probative value and prejudicial impact].'" (Ibid.)
The question we face is whether the trial court committed prejudicial error by failing to exclude the evidence of Gonzalez's prior statutory rape as substantially more prejudicial than probative under Evidence Code section 352. The trial court has broad discretion to make such a determination. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.) It "must consider such factors as [the] nature [of the evidence], [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, 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 will not disturb the trial court's decision absent "'a showing that [it] exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Frazier, at p. 42.)
Here, the trial court did not abuse its discretion. The evidence relating to Gonzalez's prior statutory rape conviction was highly probative. In the first place, the conduct occurred in May 1997, only about two years before his stepdaughters testified he began sexually abusing them. Thus, the trial court correctly rejected Gonzalez's contention that the prior offenses were too remote in time to be probative. Gonzalez was 26 years old when he engaged in sexual intercourse and other sexual contact with two 13- year-old girls in a motel room. He was in his late twenties when he began molesting his young stepdaughters. Indeed, at the time the abuse began, Gonzalez was on probation subject to a condition that he not be in the presence of minors unless supervised by someone who knew of his conviction, precisely because of the danger he posed. Moreover, the evidence Gonzalez engaged in sexual intercourse with a 13-year-old girl is extremely probative of his proclivity to engage in sexual intercourse with children, precisely what his stepdaughters testified he did to them.
Nor was the evidence so prejudicial as to outweigh its probative value. "The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Walker (2006) 139 Cal.App.4th 782, 806.) Neither factor raises concerns in this case. First, Gonzalez pled guilty to unlawful sexual intercourse with a 13-year-old girl. Though he denied having sexual intercourse with Christina and Patricia at trial in this case, he had already been convicted and punished for the offense. Thus, there is no concern that the jury would seek to punish him for the prior offenses regardless of his guilt in this case.
Second, the acts for which Gonzalez stood accused in this case were far more inflammatory than the evidence of his prior conduct. In the earlier case, Gonzalez was convicted of engaging in consensual sexual intercourse with a teenage girl on a single occasion. In this case, Gonzalez stood accused of forcing his three stepdaughters to engage in sexual intercourse repeatedly over the course of several years. Thus, his conduct here constituted the repeated forcible rape of three young girls for whom he occupied the role of father. Sexual misconduct does not get much worse, and seen in that light the suggestion his prior consensual sexual misconduct unduly inflamed the jury against him is facially absurd.
We conclude there is no basis for us to hold the trial court abused its discretion by admitting the evidence of Gonzalez's prior sexual offense.
Even if admitting the evidence were open to question, we conclude it is not reasonably probable Gonzalez would have received a more favorable result had the trial court barred the evidence of his prior offense. (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008; People v. Watson (1956) 46 Cal.2d 818, 836-837.) The evidence against Gonzalez was beyond overwhelming. All three of his stepdaughters testified about his abuse in excruciating detail, as we have recounted in part I.A. ante. They also testified he apologized to them on the night they finally reported his abuse. In addition, after he was accused, Gonzalez fled to Mexico. (See People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 [evidence of flight permissible to show consciousness of guilt].) On a later pretext call with the mother, Gonzalez could not bring himself to outright deny the accusations against him and he repeatedly apologized. His attempts to avoid answering B.L.'s direct questions cast doubt on his credibility, and his testimony in his own defense consisted only of his denying the accusations.
In addition, the evidence of Gonzalez's prior offense did not occupy a prominent place in the trial. Christina and Patricia gave only brief testimony relative to the extensive and detailed testimony of his stepdaughters. The prosecutor recounted their testimony in closing arguments, but did not argue the evidence showed Gonzalez's propensity to commit the sexual offenses against his stepdaughters. And defense counsel did not even mention their testimony in his closing argument. In our view, the evidence the trial court admitted under Evidence Code section 1108 simply did not figure prominently enough in Gonzalez's trial to prejudice him, especially when compared to the testimony of his stepdaughters.
For all these reasons, we conclude the trial court did not commit prejudicial error by allowing the evidence of Gonzalez's prior sexual offense.
B. CALCRIM 1191
Gonzalez contends the jury instruction concerning how to weigh the evidence of his other sexual offense misled the jury about the burden of proof and thereby violated his due process rights. He acknowledges our Supreme Court has approved a substantially similar instruction, but raises the issue to preserve it for possible federal review.
The trial court instructed the jury with the standard instruction for evidence admitted under Evidence Code section 1108 (CALCRIM 1191). In pertinent part, the instruction directs the jury to "consider this evidence [of prior sexual offenses] only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense . . . [¶] . . . [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit Lewd Act Upon a Child and Forcible Sodomy, as charged here. If you conclude that the defendant committed the uncharged offense[s], that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Lewd Act Upon a Child or Forcible Sodomy. The People must still prove each charge and allegation beyond a reasonable doubt."
In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the California Supreme Court approved a similar jury instruction (a modified version of CALJIC No. 2.50.01) against the same objections Gonzalez makes here. That instruction provided in relevant part: "If you find that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide." (Reliford, at p. 1012.)
Like Gonzalez, the defendant in Reliford objected to the instruction on the ground it could mislead the jury to convict him of the current crimes based on its finding that his past offenses show he was likely to commit the current crimes. (Reliford, supra, 29 Cal.4th at p. 1012.) The Supreme Court disagreed. It concluded "the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instruction's next sentence says quite the opposite: 'if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . ., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.'" (Id. at p. 1013.) Taken together, the Supreme Court concluded "the instructions could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct." (Ibid.) We reach the same conclusion here. The instruction does permit the jury to infer from the past offense that Gonzalez was likely to commit and did commit the crimes against his stepdaughters, but the very next sentence makes clear such evidence is not sufficient by itself to prove beyond a reasonable doubt—as required in other instructions—that he committed the charged crimes. We agree with the Supreme Court's analysis in Reliford and follow its holding as we are required to do. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Also like Gonzalez, the defendant in Reliford objected the instruction could lead the jury to find him guilty under the preponderance of the evidence standard instead of the beyond a reasonable doubt standard. (Reliford, supra, 29 Cal.4th at p. 1015.) Again, the Supreme Court disagreed. "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense. . . . The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty 'beyond a reasonable doubt.' [Citations.] Any other reading would have rendered the reference to reasonable doubt a nullity." (Id. at p. 1016.) The instruction in this case has precisely the same features and the Supreme Court's reasoning applies identically.
The Supreme Court also rejected the argument, which Gonzalez revives, that it is too much to ask the jury to apply one standard of proof to a predicate fact and a different standard of proof to the question of ultimate guilt. (Reliford, supra, 29 Cal.4th at p. 1016) The Supreme Court pointed out we do the same in the context of instructing the jury on considering evidence of other crimes, the necessity defense, entrapment, statutes of limitations, the admissibility of coconspirator statements, the failure to file tax returns in prior years, and the lawful possession of controlled substances. (Ibid.) We presume "jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Ibid.)
Accordingly, we reject Gonzalez's challenge to the instruction.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. CODRINGTON
J.