Opinion
G056012
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS GONZALEZ, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13HF3224) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Jose Luis Gonzalez was convicted of six counts of child molestation of victim A.G. He was convicted of another four counts of child molestation of victim C.D., his former stepdaughter. Y.P., another former stepdaughter, appeared at the trial briefly to testify about Gonzalez's attempted molestation of her when she was 10 or 11 years old. Gonzalez was given 25 years to life on the six counts of molestation against A.G., and another 15 years to life on the four counts involving C.D.
All counts were pursuant to Penal Code section 288, subdivision (a).
By running consecutively two of the counts involving A.G. (25 plus 25) and two of the counts involving C.D. (15 plus 15), the court imposed a sentence of 80 years. The other counts were run concurrently.
On appeal he presents but one issue: the trial court abused its discretion under Evidence Code section 1108 by admitting Y.P.'s testimony. Gonzalez claims Y.P.'s testimony was insufficiently related to the charged offenses involving A.G. and C.D. to fill the "probative" requirements of section 352. We disagree. Y.P.'s testimony showed both (1) Gonzalez's general sexual interest in pubescent and prepubescent girls plus (2) his willingness to abuse his position as a stepfather in a household with a pubescent girl by creeping into her bedroom at night to molest her.
All further statutory references are to the Evidence Code unless otherwise indicated.
II. BACKGROUND
In the spring of 2013, a male friend of Gonzalez's, Benjamin Avila, met 13-year old A.G. on a dating website known as "Waplog." Avila and A.G. soon began a sexual relationship. Soon after that Avila insisted that A.G. have sex with Gonzalez. That summer, having just graduated from the eighth grade, A.G. had various forms of sex, including vaginal intercourse, with Avila and Gonzalez on an almost weekly basis. In the fall, A.G. told a school friend about her relationship with Avila, which led to the arrest of Avila and Gonzalez.
A previous report of child molestation had been made against Gonzalez in 2000, involving C.D., his stepdaughter. C.D. was seven or eight at the time. In January 2000, C.D. became angry at her mother and told her that her stepfather was touching her inappropriately. Her mother took her straight to the police. A physical exam revealed a vaginal tear consistent with sexual penetration.
The briefing does not tell us why Gonzalez was not prosecuted for child sexual abuse back in 2000 when C.D. came forward. But when he was arrested in 2013 for his involvement with A.G., he was also charged with various sexual acts against C.D. as well.
At Gonzalez's trial both A.G. (now 17) and C.D. (now 26) testified. A.G. told the story of how she met Avila and then progressed into a sexual relationship with both Avila and Gonzalez. C.D. said that Gonzalez began fondling her when she was seven or eight years old, progressing from things that weren't "inappropriate," like a pat on the head, to eventually touching her breasts, vagina and "pretty much everywhere." The acts often happened when C.D. was pretending to be asleep in her room. They would often happen at night when her mother was working.
C.D. shared a room with her mother; Gonzalez slept in a different room.
Y.P., another former stepdaughter of Gonzalez's, also testified. Gonzalez had been Y.P.'s stepfather when she was 10 or 11 years old, back around 1986. She testified that on three separate occasions Gonzalez came into her room while she was sleeping. Each time he lifted her robe. The first time was to her ankles. The second time was to her knee. The third time he lifted it to her waist. On this third occasion, while she was pretending to be asleep, it appeared to Y.P. that Gonzalez was reaching for her midriff and about to touch her. At that point she hit his hand, stood up in bed, and told him "to get the hell out of my room."
III. DISCUSSION
Gonzalez attacks his conviction with the assertion that Y.P.'s testimony as to "vague long-ago acts" does not pass "352 muster." He submits her testimony was "not probative of much at all that was disputed in the case."
Section 352 is a much-litigated one-sentence statute: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
But Y.P.'s testimony was not exclusively a section 352 matter. Her testimony was admitted under section 1108. Section 1108 was enacted in 1995 as an exception to the traditional rule that propensity evidence is not admissible unless somehow pegged to some fact (such as modus operandi) other than a disposition to commit a crime. (People v. Falsetta (1999) 21 Cal.4th 903, 910-911 (Falsetta).) The point of the statute is that because the willingness to commit a sex crime is not common to most people, evidence of prior sexual offenses is "'particularly probative.'" (Id. at p. 912, quoting Review of Selected 1995 Cal. Legislation (1996) 27 Pacific L.J. 761, 762.) Moreover, such evidence is often important in the prosecution of sex crimes because they are "usually committed in seclusion without third party witnesses or substantial corroborating evidence." (Falsetta, supra, 21 Cal.4th at p. 915.)
Section 1108 incorporates section 352. In subdivision (a) the statute reads: "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."
Because of the law's traditional distaste for propensity evidence, section 1108 was soon attacked after its mid-1990's enactment as a violation of constitutional due process. (See Falsetta, supra, 21 Cal.4th at p. 910.) Our high court held that because evidence under section 1108 is still subject to being excluded under section 352, it survives a due process challenge. (Id. at p. 917.)
By its terms section 352 commits the probative/prejudicial balancing to the discretion of the trial judge. ("The court in its discretion may exclude . . . .") Thus trial court decisions under sections 1108 and 352 are tested under an abuse of discretion standard. (People v. Erskine (2019) 7 Cal.5th 279, 296.)
In the present case, it is hard not to find the admission of Y.P.'s testimony passed "352 muster." Gonzalez's main argument - that Y.P.'s testimony was insufficiently related to the charged offenses concerning A.G. and C.D. - does not hold up under scrutiny. We recognize that the three incidents involving Y.P. are different from the ongoing sexual relationship Gonzalez formed with A.G. However, C.D.'s story was remarkably similar to Y.P.'s. C.D. testified to a series of molestations that occurred when Gonzalez crept into her room and began touching her sexually while she was pretending to be asleep. These touchings escalated from innocent or semi-innocent to overtly sexual ones. That scenario is very close to Y.P.'s story, except that Y.P. called a halt to the progression on Gonzalez's third attempt, when he unambiguously attempted a sexual touching.
Thus Y.P.'s story was highly probative of C.D.'s credibility. And C.D.'s credibility was attacked vigorously by Gonzalez's counsel at trial, based on her supposed motive to make up molestation allegations against her stepfather as a way of punishing her mother for going out, plus her story in 2000 that the molestations had occurred while her mother was asleep in the same room. Y.P.'s short narrative thus corroborated C.D.'s testimony that Gonzalez had a propensity to use his position as a stepfather in a household to sexually exploit a stepdaughter. It also showed Gonzalez typically crept into a stepdaughter's room while she was sleeping (or pretending to be sleeping) to see what he could get away with. That evidence was highly probative. (See Falsetta, supra, 21 Cal.4th at p. 912 [evidence of other sex crimes is "'particularly probative and necessary for determining the credibility of the witness'"] (quoting Review of Selected 1995 Cal. Legislation (1996) 27 Pacific L.J. 761, 762).)
Nor can we agree with Gonzalez's appellate argument that while Y.P.'s testimony involved a stepfather going into a child's bedroom, "the subsequent conduct was completely different." Y.P. simply didn't let Gonzalez's touching escalate to the point of a sex crime. C.D. did.
The relevance and probative value of the evidence seems equally clear regarding A.G. To be sure, A.G. was not Gonzalez's stepdaughter, nor did they reside under the same roof. However, Y.P.'s testimony corroborated the general prosecution theory that Gonzalez was attracted to prepubescent and pubescent females. As one of the commentators cited in Falsetta observed: "A person with a history of . . . child molestation stands on a different footing. His past conduct provides evidence that he has the combination of aggressive and sexual impulses that motivates the commission of such crimes, that he lacks effective inhibitions against acting on these impulses, and that the risks involved do not deter him. A charge of . . . child molestation has greater plausibility against a person with such a background." (Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases (1994) 70 Chi.-Kent L.Rev. 15, 20, italics added.)
The Karp article was cited in Falsetta for its positive reception of Federal Rules of Evidence 413 and 414, which are the federal equivalents of section 1108. (See Falsetta, supra, 21 Cal.4th at pp. 920-921.) --------
On the other side of the probative/prejudicial scale, the "prejudice" factor here was minimal. Prejudice is minimized where the prior offense is not as " inflammatory" as the charged offense. (See People v. Soto (1998) 64 Cal.App.4th 966, 991.) Y.P.'s testimony was much less inflammatory than that of either A.G. or C.D. Y.P.'s testimony involved no completed act of child molestation, only an attempted one.
Finally, the other factors bearing on section 352 analysis likewise show the reasonableness of the trial judge's decision. Y.P.'s testimony took very little time, did not degenerate into a mini-trial of its own, and posed very little danger of confusing any issue or misleading the jury. Whether Gonzalez had molested C.D. in her sleep was the issue, and Y.P.'s testimony corroborated C.D.'s on that very point.
People v. Jandres (2014) 226 Cal.App.4th 340, the main case relied on by Gonzalez, is not on point. Jandres involved a dissimilar offense - an attempted kidnapping. This case involves no dissimilar offenses. We note that all 10 counts on which Gonzalez was found guilty were for child molestation under Penal Code section 288, subdivision (a).
IV. DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.