Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA047485, Lisa M. Chung, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Marco Antonio Martinez appeals from the judgment entered following his conviction by jury of three counts of sexual penetration of a child 10 years old or younger and two counts of sexual penetration of a child under 14 years old. (Pen. Code, §§ 288.7, subd. (b), 289, subd. (j).) Defendant contends that the trial court committed prejudicial constitutional error in admitting evidence of a prior uncharged sex offense and in denying his motion for a continuance to obtain rebuttal character evidence.
We conclude the trial court did not abuse its discretion in allowing evidence of a prior uncharged sex offense under Evidence Code section 1108 and that defendant forfeited the continuance issue by not first raising it in the trial court. We affirm the judgment.
All further undesignated statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning January 2006, defendant and his wife D. lived with D.’s brother L., his wife B., and their daughters T. and J.C. D. worked from 6:00 a.m. until midnight every day and L. worked 12-hour shifts from 3:00 a.m. or 5:00 a.m. Because of D.’s and L.’s busy work schedules, defendant was often alone with J.C. and took her to twice weekly soccer practices. After he moved out in June 2007, defendant continued to visit, often staying the night.
In September 2009, J.C. told her mother that defendant had touched her inappropriately on numerous occasions from the time she was eight years old. Defendant had fondled her breasts and vagina under her clothing and had inserted his finger inside her vagina. J.C. estimated that defendant touched her over 75 times while he drove her to and from soccer practice in addition to incidents that occurred in her home. Police interviewed defendant who admitted twice fondling J.C.’s bare breasts and putting his finger inside her vagina.
The following are the three charged Penal Code section 288.7 violations. The first occurred when defendant entered J.C.’s bedroom and rubbed her chest and vagina and inserted his fingers inside her vagina. The second occurred when defendant drove J.C. to soccer practice and put his hands down J.C.’s shorts and rubbed her vagina. The third offense occurred when J.C. was playing on the computer in her living room. Defendant came up behind her, picked her up, put her in his lap, put his hands under her shirt, rubbed her chest, put his hands down her shorts, and inserted his fingers inside her vagina.
The following are the two Penal Code section 289 offenses. The first occurred at a summer family gathering when J.C.’s friend decided to spend the night. The defendant volunteered to drive J.C. and her friend to the friend’s house to pick up some things and while the friend did so, defendant put his hand inside J.C.’s pants and fondled and penetrated her vagina with his fingers. Defendant then asked J.C. if she liked it and she said, “No, stop.” Defendant responded, “You know you like it, ” while she continued to shake her head “no.” The second occurred at a family pool party when defendant and J.C. were alone. Defendant grabbed J.C. and put his hands under her shirt and rubbed her chest and held her there until another family member reappeared.
During the investigation, detectives also discovered another complainant, defendant’s cousin R.M., who claimed she was 16 years old when defendant got in bed with her and fondled her breasts. R.M. was sleeping in her Aunt Monica’s son’s room and awoke to someone fondling her bare breasts. R.M. left the room to tell her aunt. Approximately four minutes later, the aunt went to her son’s room and discovered defendant and her nine-year-old son in the room.
On cross-examination, the aunt testified that a third person, a 13-year-old male, was sleeping on a top bunk.
Over a month before trial, defense counsel asked for a continuance due to issues stemming from insufficient funds. The trial court denied this motion. Two weeks before trial, the defense again moved for a continuance, claiming the prosecution had failed to provide all discovery. The court denied the motion after noting that the defense had received all discovery.
On the day of trial, prior to jury selection, the deputy district attorney notified the court that she intended to call R.M. as a witness under section 1108, stating that the content of her proposed testimony was provided during discovery. Defense counsel objected and the trial court deferred its ruling.
Prior to the taking of testimony, the court conducted a section 402 hearing. In balancing the factors under section 352, the court found that R.M.’s testimony regarding the uncharged offense was not unduly remote in time, was of similar conduct, was not unduly inflammatory, and would not result in a mini trial regarding the uncharged offense. The court decided the probative value of the evidence outweighed its prejudicial effect and ruled that R.M.’s testimony was admissible. Defense counsel objected, claiming the admission was unduly prejudicial without allowing time for the defense to obtain rebuttal character witnesses and notified the court that the defense might present such witnesses.
In addition to the testimony of J.C. and R.M., the prosecution introduced evidence of defendant’s taped interview during which he admitted touching J.C.’s breasts and twice inserting his fingers into her vagina. Defendant’s wife also testified at trial, stating that defendant had told her what he had done.
DISCUSSION
I. The Court Properly Admitted Evidence Under Section 1108
As noted above, the court admitted evidence of the prior uncharged offense against R.M. under section 1108 over defense objection. Defendant contends admitting the evidence was constitutional error because its prejudicial effect outweighed its probative value. We disagree.
A trial court’s decision to admit evidence will not be disturbed unless the court exercised its discretion in an “arbitrary, capricious or patently absurd manner” resulting in a miscarriage of justice. (People v. Callahan (1999) 74 Cal.App.4th 356, 367 (Callahan).) In People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta), the California Supreme Court declared section 1108 constitutionally valid because the trial court had the discretion to exclude any evidence if the prejudicial effect outweighed its probative value.
The trial court must balance section 352 factors when deciding whether to include evidence of a prior uncharged offense. (Falsetta, supra, 21 Cal.4th at p. 917.) These factors include: the nature, relevance, and remoteness of the uncharged offense; the degree of certainty of its commission and likelihood of confusing the jurors; the similarity of the offenses; the likely prejudicial impact on the jurors; the added burden in defending against the uncharged offense; and the availability of less prejudicial alternatives. If the probative value of the evidence outweighs its prejudicial effect, the trial court may admit the evidence. (Ibid.)Prejudice is not synonymous with damaging; prejudice exists where the evidence evokes an emotional bias against defendant, but has very little effect on the issues presented. (People v. Yu (1983) 143 Cal.App.3d 358, 377; see also Callahan, supra, 74 Cal.App.4th at p. 371.)
Defendant asserts that the uncharged offense had no probative value because the allegation was “unsubstantiated” and there was no similarity between the offenses allegedly committed against J.C. Therefore, the prejudicial effect of the inflammatory testimony outweighed its probative value.
The defendant argues that there is no degree of certainty he committed the uncharged offense because R.M. was so drunk at the time of the incident that she fell out of bed and there was another person in the room besides defendant. However, defendant misstates the evidence. R.M. testified that she was “tipsy, ” not drunk, and that she fell asleep on the floor and woke up on the bed, not that she fell off the bed. And while there was another family member in the room when R.M. was molested, it was up to the jury to determine what weight to give her testimony. Significantly, the jury was instructed to consider R.M.’s testimony “only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense.”
There is also sufficient similarity between the incident to which R.M. testified and the charges involving J.C. Defendant argues the two offenses are not sufficiently similar because the incident involving R.M. did not entail any penetration, R.M. was not a family member, and there was an age difference between the two girls. However, while the incident involving R.M. did not entail penetration, both incidents involved the touching of the young girls’ bare breasts. Also, defendant again misstates the record because R.M. was defendant’s cousin. And while J.C. was eight years old and R.M was 16, “persons with deviant sexual urges do not always limit their sex crimes to victims of the same age group” and so age differences do not make prior incidents irrelevant. (People v. Escudero (2010) 183 Cal.App.4th 302, 306, 311.)
As to probative value of the evidence, the nature of the incident involving R.M. was relevant to show a pattern in defendant’s conduct of molesting young female family members. In addition, the uncharged offense involving R.M. was not remote in time because it occurred in the same time period as the charged offenses.
The prior uncharged offense did not prejudicially inflame the jurors because the incident involving R.M. was less inflammatory than the charged offenses. R.M.’s bare chest was fondled. This pales in comparison to the evidence that defendant touched eight-year-old J.C.’s breasts and digitally penetrated her vagina.
The court’s decision to admit R.M.’s testimony was a reasonable exercise of its discretion. There was no error.
II. Defendant Forfeited the Continuance Issue
As outlined above, the court denied both of defendant’s continuance motions. Defendant contends he also made a motion to continue in the midst of trial to obtain character evidence, which was also denied. He contends this denial deprived him of a fair trial. However, we fail to locate this third motion to continue.
Although defendant claims he moved for a continuance in the midst of trial, our examination of the record reveals no such motion. In the portion of the record cited in defendant’s brief, defense counsel stated that if his earlier request for a continuance had been granted, he would have been more adequately prepared for trial. However, these comments do not amount to a renewed motion to continue. (See People v. Perkins (1984) 159 Cal.App.3d 646, 653.) Therefore, because there was no motion to continue to obtain good character evidence, defendant has forfeited that issue. (People v. Alcala (1992) 4 Cal.4th 742, 782.).
DISPOSITION
The abstract of judgment states that the court ordered the eight-year determinate sentence for count 4 to run consecutively to the indeterminate terms of 15 years to life imposed for counts 1 through 3. In his brief, the Attorney General suggested that the abstract might be in error because the trial court’s oral pronouncement of judgment was ambiguous. Upon review of the transcript, although we agree that the court’s pronouncement could have been clearer, we conclude that by stating “the determinate portion is eight years first, ” the court intended that the sentence for count 4 run consecutively to the indeterminate terms. (See In re Maes (2010) 185 Cal.App.4th 1094, 1100 [“When a life sentence and determinate terms are ordered to be served consecutively, [Penal Code] section 669 directs that ‘the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person’s eligibility for parole as calculated pursuant to [Penal Code] Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole.’”].) We also observe that after being put on notice by the Attorney General, defendant did not address the sentencing issue in his reply brief.
We concur: EPSTEIN, P.J., MANELLA, J.