Opinion
F041062.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. WALTER CRUZ MENDIOLA, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Patrick J. Whalen and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Ardaiz, P.J., Cornell, J. and Gomes, J.
Walter Mendiola appeals his convictions on five counts of oral copulation of a person under 16 by a person over 21 years of age. (Pen. Code, § 288a, subd. (b)(2).) He contends the trial court erred in admitting evidence of a prior uncharged sexual offense, and in instructing the jury pursuant to CALJIC No. 2.50.01. We affirm.
STATEMENT OF THE CASE
In September of 2000 the Tulare County District Attorney charged appellant by information with five counts of felony oral copulation with a person under the age of 16. As to each count, the information alleged appellant committed the offenses with knowledge that he had AIDS within the meaning of Penal Code section 12022.85. Appellant pled not guilty and denied the special allegations, but then in June of 2001 withdrew his plea and pled nolo contendere. However, in September of 2001 the trial court allowed appellant to withdraw his nolo contendere plea for reasons not at issue on appeal, and the case proceeded to trial. A jury found appellant guilty of all charges. The court sentenced appellant to a total term of seven years, eight months and ordered restitution. Appellant timely appeals.
FACTS
The victim, Shawn S., was 15 years old when his mother arranged for him to dog sit for appellant. Shawn would go to appellants house to care for his dogs while appellant and his partner were away for the weekend. Shawn took care of the dogs on five or six occasions from January 2000 through July of 2000.
After the first time Shawn took care of the dogs, he went to appellants house to return the keys and appellant was home. Appellant asked Shawn if he had ever watched a "porno," and they watched pornography together. Appellant and Shawn then drove to the bank to get money to pay Shawn, and appellant offered to give Shawn "head." Shawn pulled his pants and underwear down, and appellant placed his mouth on Shawns penis.
Appellant performed oral sex on Shawn approximately five or six times between January and July. Shawn never performed a sex act on appellant, though he believed appellant may have masturbated one time when they were together. Shawn ultimately told his mother what had happened, and appellant was arrested and charged as previously set forth.
DISCUSSION
Evidence of a Prior Uncharged Sex Offense
Appellants first claim of error is that the trial court erred in admitting evidence of an uncharged sex offense pursuant to Evidence Code section 1108. The prosecution introduced evidence that in 1997 in Reno, Nevada appellant had been observed by police officers to masturbate in a public restroom and had asked an officer to "let him see it" (referring to the officers penis). Appellant was not arrested because he appeared to be in very ill health.
All further statutory references are to the Evidence Code unless otherwise stated.
During in limine motions, defendant objected to the introduction of this evidence. The prosecutor argued that the evidence was admissible under section 1101 and section 1108. Appellant recognizes that the use of section 1108 evidence is not, in itself, a due process violation (People v. Falsetta (1999) 21 Cal.4th 903), but argues that the court erred in determining that the evidence had probative value and was not unduly prejudicial under section 352.
The trial court did not rule on this ground for admissibility.
Section 1108 provides in part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
In a prosecution for a sexual offense, section 1108 permits evidence of the commission of another sexual offense provided that it is not inadmissible under section 352 (prejudicial effect of the evidence outweighs its probative value). "By reason of section 1108, trial courts may no longer deem `propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) We will not disturb a trial courts exercise of discretion under section 352 unless it is shown the trial court exercised it "`"in an arbitrary, capricious or patently absurd manner."" (People v. Frye (1998) 18 Cal.4th 894, 948; accord, People v. Sanders (1995) 11 Cal.4th 475, 512.)
The courts ruling admitting the Reno evidence was not an abuse of discretion. Appellant contends that the evidence of his prior public masturbation and attempted solicitation was simply not probative of appellants propensity to orally copulate a 15-year-old boy. While we agree that there are obvious differences between the Reno incidents and the charged offenses, section 1108, unlike section 1101, subdivision (b), contains no predicate requirement that there be an unusually high degree of similarity. As this court noted in People v. Soto (1998) 64 Cal.App.4th 966, the Legislature deliberately chose not to add a similarity requirement to section 1108 because doing so could reintroduce the strictures of prior law which the statute was designed to overcome "`"`and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not "specialists", and commit a variety of offenses which differ in specific character."" (People v. Soto, supra, 64 Cal.App.4th at p. 984, quoting Historical Note, 29B pt. 3, Wests Ann. Evid. Code, (1998 pocket supp.) foll. § 1108, pp. 31-32.) Thus, evidence can be presented to permit a "reasonable inference" that "the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses." (People v. Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford).)
The Supreme Court specifically left open the issue of "whether the uncharged sex acts must be similar to the charged offenses in order to support the inference." (Reliford, supra, 29 Cal.4th at p.1012, fn. 1.)
Appellant nevertheless contends that the ruling was an abuse of discretion because he maintains the Reno incident had no probative value to the charged offense, and thus there was nothing to balance the prejudice in allowing the jury to consider the evidence. We disagree. Evidence that appellant had publicly masturbated and, specifically, begged a very young looking police officer to "Please let me see it" (referring to the officers penis), are probative of the current charges that he repeatedly offered to give the victim oral sex. This evidence tended to support the victims claim that appellant solicited sex acts from him at all. (See People v. Fitch (1997) 55 Cal.App.4th 172, 182 ["The Legislature has determined the need for this evidence is `critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial"].) The trial court did not abuse its discretion in allowing the jury to consider the Reno incidents.
The officer testified he was 34 years old but had recently been "carded for a can of Copenhagen."
CALJIC No. 2.50.01
Appellant next complains he was prejudiced by the court instructing the jury it could consider the evidence of defendants prior offense to show propensity to commit sexual offenses, pursuant to CALJIC No. 2.50.01 (2001 rev.). He contends that this instruction improperly allowed the jury to convict him using "proxy" evidence of the prior crime and violated the due process clause of the California and United States Constitutions.
The trial court instructed the jury pursuant to CALJIC No. 2.50.01 (2001 rev.) as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [¶] [`Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: [¶] [A] Any conduct made criminal by Penal Code Section 314. The elements of this crime are set forth elsewhere in these instructions. [& para;] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit 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 or crimes of which he is accused. [& para;] However, 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 crimes. The weight and significance of the evidence, if any, are for you to decide. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
The Supreme Court recently rejected this contention. In Reliford, supra, the court proclaimed that "the 1999 version of CALJIC No. 2.50.01 correctly states the law." (Reliford, supra, 29 Cal.4th at p. 1009.) The court rejected any suggestion the instruction was likely to mislead the jury regarding the prosecutions burden of proof and that "the instruction `implies by way of a negative pregnant that prior sex offenses proved beyond a reasonable doubt are indeed sufficient to prove the present offense beyond a reasonable doubt." (Id. at p. 1015.) The court also rejected an argument that the instruction was too complicated for jurors to apply. (Id. at p. 1016.)
The Reliford court noted that the 2002 revised version of the instruction instructs the jury "that the inference they may draw from prior sexual offenses is simply one item to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." (Reliford, supra, 29 Cal.4th at p. 1015.) The court referred to this sentence as "an improvement," explaining that it "provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses." (Id. at p. 1016.) However, the court concluded that "the constitutionality of the instruction does not depend on this sentence." (Ibid.)
The 2001 version of CALJIC No. 2.50.01 given here contained substantially the same language as the 1999 version of the instruction given in Reliford. As appellant recognizes in reply, we are compelled to follow Reliford and reject defendants claim that CALJIC NO. 2.50.01 violates due process. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.