Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01683
BLEASE , Acting P. J.
Defendant appeals from the judgment of conviction after a jury found him guilty as charged of four counts of lewd and lascivious acts with a child under the age of 14 years (Pen. Code, § 288, subd. (a); Cts. 1, 2, 7, 8), two counts of forcible lewd and lascivious acts with a child under the age of 14 years (§ 288, subd. (b)(1)); Cts. 3, 4), and two counts of forcible sodomy by a person more than 10 years older than the victim. (§§ 269, subd. (a)(3), 286; Cts. 5, 6.) The jury also found true the multiple victim sentence enhancement allegation. (§ 667.61, subd. (e)(5).) He was sentenced to an aggregate prison term of 120 years to life.
All further section references are to the Penal Code unless otherwise specified.
On appeal, he contends the trial court erred by admitting a 20 year-old uncharged act for which he was acquitted, giving a standard propensity instruction, and imposing consecutive sentences under the mistaken belief it had no discretion to impose concurrent sentences. We find no error and shall affirm the judgment.
Although not raised by the parties, we note that the abstract of judgment mistakenly designates the convictions in counts 5 and 6 as violations of section “269(A)(4)” rather than section 269, subdivision (a)(3). We shall order that the abstract be amended to reflect the correct statutory provision.
FACTUAL BACKGROUND
A. The Charged Offenses
The two victims in this case, A. and her younger sister A-L., were defendant’s nieces. Beginning in 1993, when the girls’ parents were divorced, they spent alternate weeks with each parent.
A. was born in the spring of 1990. A-L. was born in the spring of 1992.
In 1998, defendant and his wife Connie moved into a new house in Elk Grove where A-L. and A. visited them during the weeks they were with their father. Once or twice a month, the girls spent the night at defendant’s house along with their father. About once every two months, they spent the night at defendant’s house without their father.
One time when A-L. was six or seven years old, she was sleeping with her sister on an air mattress in defendant’s living room. During the night, defendant picked her up and placed her on the couch where he reached under her clothing and touched both of her breasts for longer than a minute, moving his hand in a circular motion. She tried to scoot away, but he grabbed her and pulled her closer to him. When he was done, he put her back on the air mattress.
Count 7.
Defendant touched A-L.’s breasts in that manner on five or six separate occasions. Each incident occurred at night in the living room of his house. The last time he touched her like that was when she was eight years old.
Count 8.
A. began staying at defendant’s house when she was in the third grade and continued to visit her aunt and uncle until she was in the eighth grade. During that time-period, defendant forced her to suck his penis, touched her vagina with his lips and tongue, and “stuffed both of his fingers and his penis in [her] butt.” He committed these acts both day and night. Sometimes A.’s sister and aunt Connie were in the house, but they never walked in when he was molesting A.
One such incident occurred when A. was in the fourth grade. Defendant picked her up from her father’s house and took her back to his own house so she could retrieve some pills she had left in the kitchen. When they arrived at his house, he grabbed her arm and pulled her into the bathroom and told her to take off her clothes. She complied by removing her jeans and underwear and he put his lips on her vagina as she was lying on her back. He then removed his own jeans and underwear and got on top of her and positioned himself with his face over her vagina and his penis over her face and told her to suck his penis. She resisted at first and tried to push him away but he was too big. She also tried to keep her mouth shut, but eventually relented. When he finally ejaculated, he told her to swallow the semen and placed his hand over her mouth. Afterwards, she grabbed her pills and ran out of the house where she waited for him to take her home. This incident lasted about 30 to 45 minutes. Defendant forced A. to orally copulate him 10 to 12 times.
Count 3.
Count 4.
On another occasion, when A. spent the night at defendant’s house, she was half-asleep when she noticed him next to her bed. He put his hand under her clothing and touched her breasts and her vagina.
Count 1.
According to A., defendant molested her every time she and her sister spent the night at his house without her father present. He touched her vagina between 15 and 20 different times and put his fingers in her buttocks more than five times. On 15 to 20 other occasions, he put his penis in her buttocks. When these incidents occurred, A. was sitting on him with her back towards him and he had his hands on her hips. With one exception, each time she tried to get away, he grabbed her by the arm and sodomized her. He ejaculated more than half the time and used a cloth to clean both of them. On the occasions when he sodomized her, he began by either putting his finger in her buttocks or inserting his penis in her mouth.
Count 2.
Counts 5 and 6.
In late December 2004, A. asked A-L. if defendant had done anything to her when she was young. When A-L. indicated that he had, the two sisters spent the next two days discussing what defendant had done to them. Two days later, they told their father about the molestations and he notified the police.
B. Uncharged Offenses
On one occasion, defendant went to A.’s house in West Sacramento. After her father left the house to take her sister to a dance class, A. and defendant were alone in her bedroom. He was on the floor and while she sat on his lap, he put his finger and then his penis in her buttocks.
In 1985, R.S. lived with her family in an apartment complex in Germany while her husband was stationed there. The couple had a son and a seven year-old daughter, M. Defendant and his wife Connie lived upstairs with their two sons, F. and R., and R.S. and Connie became friends.
M. was born in late fall 1977.
On the afternoon of January 26, 1985, R.S.’s children went upstairs to play with F. and R. Sometime later, R.S. went upstairs to visit Connie, and after chatting a while, R.S. decided to check on her children. As she pushed open the door to F.’s room, she asked, “[w]hat are you guys doing?” The door hit defendant in the back. When she looked down to see what was blocking the door, she saw defendant was lying on the floor with M. next to him. He had his hand down the back of her pants and quickly shoved her off his leg and removed his hand from her pants. The two younger boys were playing with blocks and their backs were facing the door.
R.S. was in shock. She told her children it was time to go and they returned to their apartment where R.S. spoke to M. about what happened. They reported the incident to the military authorities and the matter was tried by court-martial, which resulted in a verdict of not guilty.
Defense
Defendant did not testify but called his wife to testify on his behalf. Connie testified that defendant drove a truck for a number of years and he was gone many weekends. She was a light sleeper and because defendant snored, she knew when he was sleeping and always heard him when he got out of bed.
On cross-examination Connie admitted that she sometimes slept in the living room because defendant snored very loudly.
In 1998, she and defendant purchased a home in Elk Grove where her brother brought his daughters to visit. The girls spent the night about six times a year and would either sleep on the trundle bed in the extra bedroom or on the queen-size sofa couch in the living room. However, since defendant worked many weekends, he was not always there when the girls spent the night. The girls did not seem uncomfortable about spending the night and did not want to go home when their father came to pick them up.
DISCUSSION
I.
The 1985 Uncharged Offense
Defendant contends the trial court abused its discretion by admitting evidence of the 1985 uncharged offense in Germany. He argues that the evidence should have been excluded because the alleged offense was remote and uncertain. He further argues the prejudicial effect of this error was exploited and exacerbated by the prosecutor during closing argument.
Respondent contends the trial court properly admitted the evidence under Evidence Code section 1108 and that defendant forfeited any claim of prosecutorial misconduct by failing to object in the trial court. We agree with respondent on the first point and find no error.
Respondent contends defendant has raised a claim of prosecutorial misconduct, which he has forfeited by failing to raise by a timely objection in the trial court. We disagree because he does not contend by way of argument or citation of authority that the prosecutor committed misconduct. Rather, he argues that the prosecutor’s exploitation of the evidence during closing argument made the erroneous admission of the evidence all the more prejudicial.
A. Background
The prosecution moved in limine to admit evidence of the 1985 offense involving seven-year-old M. under Evidence Code section 1101, subdivision (b) to prove common plan or scheme, sexual intent and to corroborate the victims’ testimony and under Evidence Code section 1108 to show his propensity to molest preadolescent females.
The prosecutor described the proffered evidence as follows: “In 1985, the defendant was in the military stationed in Germany. In January 1985 [R.S.] allowed the defendant and his wife Connie to baby-sit her 7-year-old daughter, [M.] On the 29th of January 1985, [R.S.] came to pick up her daughter at the defendant’s home. She entered the home and proceeded upstairs to find her daughter on the defendant’s lap with his hand down the back of her pants. She confronted the defendant about what he was doing and the defendant denied that he had put his hand down her pants.”
The trial court ruled this evidence was admissible under both Evidence Code sections 1101, subdivision (b) and 1108, finding the probative value of the evidence outweighed its prejudicial effect. The court found the evidence was probative on the questions of sexual intent and common plan because of the similarities between the charged and uncharged offense, including the victims’ age, the similarity of the alleged conduct, and defendant’s role as the victims’ caretaker. The court also noted that evidence of the uncharged offense was independent of the charged offenses, the allegations of the uncharged offense were not particularly inflammatory compared to those of the charged offenses, and that proof of the proffered evidence would not be time-consuming.
B. Analysis
The trial court’s ruling on the admissibility of evidence of uncharged offenses is reviewed for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.) We will not find an abuse of discretion unless the trial court exceeded the bounds of reason by exercising its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.)
Evidence Code section 1101, subdivision (a), states the general rule that evidence of a person’s character or trait of character is inadmissible to prove his propensity to commit such conduct on a specific occasion. (People v. Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) Under one exception to that rule, evidence of an uncharged offense is admissible when relevant to prove motive, intent, common plan, identity, or absence of mistake or accident, other than disposition to commit the act. (Evid. Code, § 1101, subd. (b).)
Evidence Code section 1108 (section 1108), states an additional and broader exception to the general rule by allowing propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 907.) Subdivision (a) of section 1108 states that “[i]n 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 made inadmissible pursuant to Section 352.”
Section 1108 was intended to ensure 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” because “‘this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.’” (Falsetta, supra, 21 Cal.4th at p. 911.) By enacting section 1108, the Legislature found “evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.)
Evidence Code section 352 grants the trial court broad discretion to 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. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The prejudice or damage to be avoided is not that which naturally flows from relevant, highly probative evidence, but from evidence that “‘tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’” (People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Harris (1998) 60 Cal.App.4th 727, 737.)
To avoid undue prejudice from the admission of evidence of a prior uncharged sex offense, the trial court must engage in a careful weighing process under Evidence Code section 352 by considering “such factors as its nature, 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.)
Applying these factors, we find no abuse of discretion. “Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.” (People v. Fitch (1997) 55 Cal.App.4th 172, 179; People v. Yovanov, supra, 69 Cal.App.4th at p. 405.) Here the uncharged act shares significant similarities with the charged acts and is therefore highly probative of defendant’s sexual intent and propensity to commit lewd acts against prepubescent females. The victims of the charged and uncharged offenses were the same age, the uncharged act took place in a similar setting while defendant was in a babysitting role, and his acts appear to have been an attempt to commit the same type of act he committed against A. several times while he was lying on the floor and she was sitting on him. Moreover, because the charged offenses were committed in private and there was no physical evidence to corroborate the victims’ testimony, the uncharged offense was necessary to corroborate the victims’ testimony. (Falsetta, supra, 21 Cal.4th at p. 911.) Additionally, the evidence came from an independent source, and it was not particularly inflammatory when compared to the charged acts committed against A.
Nor do we find the 1985 act was remote. Defendant contends the act took place almost 20 years before the charged offenses. We disagree and find it took place only 14 years before the charged offenses, which began in 1999. Although it has been said that a 20-year-old conviction “‘meets any reasonable threshold test of remoteness’" (People v. Harris, supra, 60 Cal.App.4th at p. 739, quoting People v. Burns (1987) 189 Cal.App.3d 734, 737-739), the courts have rejected claims of remoteness for lesser periods of time. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12 years was not too remote], superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505; People v. Ing (1967) 65 Cal.2d 603, 612 [15 years was not too remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [18 to 25 years was not too remote particularly when balanced by the similarities between the charged and uncharged offenses].)
Here, the charged and uncharged offenses were crimes of opportunity, which occurred while defendant was in a caretaking role. Given the similarity of the victims’ ages and their connection to the defendant, it may very well have taken 14 years before the opportunity to molest a seven-year-old female again presented itself to defendant. Under all of the circumstances, we find the 1985 offense was not too remote.
Defendant also contends evidence of the uncharged offense was prejudicial because he was not convicted of that offense and the jury may have decided to punish him for the prior acquittal, particularly in light of the prosecutor’s closing argument. We disagree.
The fact defendant was acquitted of the 1985 offense is the sole factor in favor of exclusion and, as the trial court reasonably found, it was outweighed by the numerous factors supporting admission of the evidence. Moreover, the fact defendant was acquitted of the offense may very well have worked to his advantage because the jury was informed of that fact and may not have given any or much weight to the evidence.
Nor do we find the prosecutor’s closing argument heightened the prejudicial effect of the evidence. In his closing argument, the prosecutor told the jury that the trier of fact in the 1985 court-martial concluded the evidence was insufficient to prove guilt beyond a reasonable doubt. He then argued that if the jury found he had proven the uncharged offense by a preponderance of the evidence, it could conclude that “if [defendant] did it back in 1985, then you can come to the conclusion that he did it here. That’s the whole point. That’s why the Legislature brought that law on to the books, because of what pedophilia is. That’s what it means.”
This argument is entirely consistent with the legislative findings and history underlying Evidence Code section 1108. As such, it was not prejudicial. (See Falsetta, supra, 21 Cal.4th at p. 912.) For all of these reasons, we find no abuse of discretion.
When enacting Evidence Code section 1108, the Legislature “‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’” (Falsetta, supra, 21 Cal.4th at p. 912.) Similarly, a letter by the author of the legislation states that this section “‘“permits rational assessment by juries of evidence so admitted. This includes consideration of the other sexual offenses as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.”’” (Ibid.)
II.
CALCRIM No. 1191
Relying on People v. Myers (2007) 148 Cal.App.4th 546 (Myers) and citing empirical studies, defendant contends his due process rights were violated when the trial court instructed the jury in accordance with CALCRIM No. 1191 because evidence of the two uncharged offenses is insufficient to support an inference of predisposition. Respondent contends defendant’s reliance on Myers is misplaced and that his claim has no merit. We agree with respondent.
The trial court gave CALCRIM No. 1191, by instructing the jury in pertinent part that “. . . if you decide that the defendant committed the uncharged offenses, 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 the charges here. If you conclude that the defendant committed the uncharged offense or offenses, that conclusion is only one factor to consider along with all the other evidence. Do not consider this evidence for any other purpose. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each element of the charge beyond a reasonable doubt.” (Italics added.)
Defendant recognizes that the Supreme Court has upheld the constitutional validity of the 1999 version of CALJIC No. 2.50.01. (People v. Reliford (2003) 29 Cal.4th 1007, 1011-1012, 1016.) CALCRIM No. 1191 is a modified restatement of CALJIC No. 2.50.01. Those modifications are not pertinent to defendant’s present challenge and he does not contest their validity. Instead, he relies on Myers to make the claim that evidence of two uncharged offenses does not legally and constitutionally support a predisposition inference. We disagree.
Defendant cites “empirical research,” which he asserts has rejected “trait theory” on the finding that character evidence has poor predictive value. To the extent defendant argues that one or two instances of prior bad conduct are not relevant to show propensity to commit a crime, he has forfeited this claim by failing to raise it in the trial court. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028; Evid. Code, § 353, subd. (a).)
This claim also ignores the plethora of authority to the contrary. Evidence Code section 1108 authorizes the admission of evidence of the defendant’s commission of one or more other sexual offenses. By enacting this section, the Legislature found that evidence of even one prior sexual offense is relevant to show a predisposition to commit sex offenses. (Falsetta, supra, 21 Cal.4th at p. 912; also see fn. 14, supra.) Case law also recognizes the strong probative value of a single prior sexual offense to prove the defendant’s disposition or propensity to commit the charged offenses. (Falsetta, supra, 21 Cal.4th at p. 915; People v. Fitch, supra, 55 Cal.App.4th at p. 179; People v. Yovanov, supra, 69 Cal.App.4th at p. 405.) Thus, the Supreme Court in Reliford, supra, 29 Cal.4th at page 1013 concluded that when a single prior uncharged sex offense is admissible, “it may support an inference - as the instruction provides - that the defendant is predisposed to commit sex offenses.” (See also Falsetta, supra, 21 Cal.4th at p. 924.)
Nor does Myers advance defendant’s position. There the reviewing court merely held that evidence of the victim’s aggressive conduct at the time of the incident is not character evidence within the meaning of Evidence Code section 1103 because character evidence must comprise something other than evidence of conduct at the time in question. (Myers, supra, 148 Cal.App.4th at p. 552.) Here the uncharged offenses, which were properly admitted under Evidence Code section 1108, took place at different times than the charged acts. We therefore reject defendant’s claim of error.
Evidence Code section 1103, subdivision (b) authorizes the admission of the defendant’s violent character in rebuttal to defense evidence of the victim’s violent character.
Defendant does not contend the West Sacramento offense was erroneously admitted.
III.
Consecutive Terms
Defendant contends the trial court mistakenly believed it had no discretion to impose concurrent sentences under the one strike law and requests that his 120-years-to-life sentence be vacated and the matter remanded to allow the trial court to exercise its discretion. Respondent contends defendant forfeited this claim by failing to raise an objection in the trial court. He further argues that the claim has no merit because the record does not reflect that the trial court held a mistaken view of its authority to impose concurrent terms. We agree with respondent as to its second point.
We reject respondent’s assertion of waiver. The claim that the trial court completely failed to exercise its discretion is not forfeited by failing to raise it in the trial court. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.)
The trial court sentenced defendant under section 667.61, often referred to as the one strike law. We consider defendant’s claim under the version of section 667.61 in effect when he committed the charged offenses. (See Stats. 1998, ch. 936, § 9.) Under that version, section 667.61, subdivision (b) provides that a person convicted of a specified offense under one of the listed circumstances is punishable by imprisonment for 15 years to life. Among the predicate offenses are forcible and non-forcible lewd and lascivious conduct (§ 288, subd. (a) and (b)) and sodomy by force (§ 286). (§ 667.61, subd. (c)(4), (6)-(7).) Among the listed circumstances is the multiple victim circumstance. (§ 667.61, subd. (e)(5).)
All further statutory references to Penal Code section 667.61 are to the 1998 statute.
Although section 667.61 mandates that separate life terms be imposed for each offense, it does not mandate that the life terms be served consecutively. (People v. Rodriquez (2005) 130 Cal.App.4th 1257, 1261-1263.) Nevertheless, former section 667.6, subdivision (d) mandates that full term consecutive sentences be imposed on convictions for forcible lewd acts (§ 288, subd. (b)) and forcible sodomy (§ 286, subd. (c)(2)) where the crimes were committed on separate victims or on the same victim on separate occasions. (Stats. 1994, ch. 1188, § 7, p. 7187.)
Here defendant was convicted of four counts of lewd acts (§ 288, subd. (a); Cts. 1, 2, 7, 8), two counts of forcible lewd acts (§ 288, subd. (b)(1); Cts. 3, 4), and two counts of forcible sodomy. (§ 269, subd. (a)(3); 286; Cts. 5, 6.) The jury found true the multiple victim circumstance enhancement. (§ 667.61, subd. (e)(5).) Thus, mandatory full term consecutive sentences were required for counts three through six only. (former § 667.6, subd. (d).)
The probation report included the following statement: “The allegation of 667.61(e)(5) of the Penal Code (Multiple Victims) was found true. This constitutes a fifteen (15) years to life sentence on all Counts. Therefore, it is recommended the defendant be committed to State Prison for fifteen (15) years to life as to each Count, to be served consecutively. Consecutive sentencing is mandated for Counts 3 - 6. It is recommended the remaining Counts be sentenced consecutively pursuant to Rule 4.425(a)(3) as the crimes occurred on separate dates.”
California Rules of Court, rule 4.425 (hereafter rule 4.425) sets forth the criteria affecting concurrent or consecutive sentences. Subdivision (a)(3) of that rule states “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
At the sentencing hearing, the trial court indicated it had read and considered the probation report. After defense counsel requested that the court state its “rational [sic] for the sentence,” the court stated as follows: “[i]t appears all the sentencing is mandatory. There are no mid or upper terms here to consider. Even though there are facts in mitigation, he has no prior criminal record. Seems everything is mandatory.” After the victim’s father made a victim impact statement, the trial court imposed sentence, stating as follows: “for Count One, violation of Section 288(a) of the Penal Code, he’ll be sentenced to 15 years to life. [¶] Count Two, will be the same sentence of 15 years to life. [¶] Consecutive sentencing is -- these sentences are to be served consecutively. 15 years to life for Count Two consecutive to Count One. [¶] Regarding Counts Three through Six, consecutive sentencing is mandated. And he’ll be sentenced consecutively pursuant to Rule 4.425(a)(3) . . . . [¶] Count Seven and Eight, he’s not eligible for probation under 1203.066 of the Penal Code . . . . [¶] He’s subject to a life term under Penal Code section 667.61. That will be 15 years to life for Count Seven and 15 years to life for Count Eight, also.” (Italics added.)
Thus, the record clearly reflects the trial court was aware of its discretion to impose concurrent sentences given the fact it read the probation report, which correctly advised that consecutive sentences were mandatory for counts three through six, while recommending imposition of consecutive sentences on the remaining four counts under rule 4.425(a)(3). The court’s statement tracks the probation officer’s report, confirming that it was aware of its discretion to impose consecutive sentences on the remaining counts. We therefore reject defendant’s claim of error.
DISPOSITION
The Superior Court is directed to prepare an amended abstract of judgment reflecting that defendant was convicted in counts five and six of violating Penal Code section 269, subdivision (a)(3) and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: DAVIS , J. HULL , J.