Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD199223 Bernard E. Revak, Judge.
McCONNELL, P. J.
A jury convicted Erlep Leonard Mito of committing a lewd act on a child (Pen. Code, § 288, subd. (a)). The jury found he was a stranger to the child within the meaning of section 1203.066, subdivision (a)(3). The jury acquitted Mito of burglary with intent to commit a lewd act. (§§ 460, 667.61, subds. (a), (c), (d).) In a bifurcated proceeding, the court found Mito had three prior strike convictions. (§§ 1170.12, 668, 667, subds. (b)-(i).) The court sentenced Mito to a total term of 81 years to life, consisting of 25 years to life tripled by the three strikes law for the lewd act, one year for a prison prior conviction (§§ 667.5, subd. (b), 668)) and five years for a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)).
All statutory references are to the Penal Code unless otherwise specified.
Mito contends his conviction must be reversed because prior acts were erroneously admitted, he was not a stranger to the child within the meaning of section 1203.066, subdivision (a)(3), the evidence was insufficient to prove he acted with lewd intent, the instructions on the use of propensity evidence violated his right to due process, the court should have instructed on the lesser offense of annoying or molesting a child, the court improperly imposed enhancements for both a prison prior and a serious felony prior, and his sentence constitutes cruel and unusual punishment. We conclude admission of the prior sexual offenses is reversible error.
FACTS
In the early morning hours of May 21, 2006, 10-year-old Dustin B. (Dustin), who was sharing a bed with his younger brother, was awakened by the sound of footsteps in the hallway outside his bedroom. He saw Mito, who was shirtless, in the doorway. Mito walked into the bedroom, climbed over Dustin's younger brother to the middle of the bed and kissed Dustin on the left corner of his mouth. Dustin screamed. Mito jumped out of the bed. When Dustin's parents arrived, Dustin told them Mito kissed him. The police were called and Mito was arrested.
Defense
Mito, who was related to Dustin's father, went out drinking with Dustin's father and three other men. The group arrived at Dustin's house at about 2:30 a.m. The group argued and twice engaged in physical altercations. After the first fight, Mito went inside. Dustin's mother, who was in the hallway, told him to go to sleep and directed him to a bedroom at the end of a hallway. Mito chose to lay down in the larger of two beds in the room, unaware that Dustin's two-year old sister was in the bed. Dustin's mother checked on them and saw Mito sleeping on one side of the bed and her daughter sleeping on the other side. It was not unusual for Dustin's family to have many people in the house at one time and to have people sharing beds. Later, Mito awoke and went outside.
Mito engaged in a second fight during which he took off his shirt. After the fight, he went inside to use the bathroom. He saw the open door to a bedroom across the hall from the bathroom and decided to go back to sleep. The room was dark and Mito was not wearing his glasses. Unaware that Dustin and his brother were in the bed, Mito crawled onto the bed. Shortly thereafter, Dustin screamed and Mito got out of the bed. Mito denied kissing Dustin or having any sexual interest in children.
DISCUSSION
I
Prior Sexual Acts
Mito contends the court erred in admitting his 1991 convictions for rape, oral copulation and penetration with a foreign object of a woman.
The prosecutor sought admission of the evidence under Evidence Code section 1101, subdivision (b) to show a common plan or design, intent, or the absence of mistake or accident and under Evidence Code section 1108 to show Mito's propensity to commit sexual offenses. The court admitted the evidence, over Mito's Evidence Code section 352 objection, explaining, "Well, since you [the prosecutor] want it, I'm going to allow it. But I'm going to allow it only in a sanitized version."
The court told the prosecutor not to "go into the bottle of beer and the ice cubes and what have you." We note the court's statement, on its face, seems to reflect a failure to engage in a thoughtful analysis of the evidence.
At trial, the victim testified that in August 1991, Mito entered her apartment through a window. He was not wearing a shirt. He put his hand over her mouth and laid on top of her. Over the period of "a couple of hours[,]" he raped her, penetrated her anus with his finger and orally copulated her. Mito pleaded guilty to the offenses.
Applicable Law
The Evidence Code generally prohibits "evidence of a person's character or a trait of his or her character" when it is "offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, under Evidence Code section 1101, subdivision (b), evidence of prior misconduct or crimes by a defendant may be admitted if relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. As a general rule, "[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 378–379.)
When evidence of uncharged prior offenses is admitted under Evidence Code section 1101, subdivision (b), there must be sufficient similarity between the prior acts and the charged offense to support an inference the defendant acted with the same intent or under a common plan or design in both the charged and uncharged acts. (People v. Kelly (2007) 42 Cal.4th 763, 784; People v. Carpenter, supra, 15 Cal.4th 312, 379.) " 'A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." ' " (People v. Kelly, supra, at p. 784.) The least degree of similarity between the uncharged act and the charged offense is required to prove intent. (People v. Carter (2005) 36 Cal.4th 1114, 1149.) "[T]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp (1998)18 Cal.4th 349, 371; Evid. Code, § 352.)
Under Evidence Code section 1108 a prior sexual offense may be admitted to show the defendant has a propensity to commit sexual offenses, unless the evidence is inadmissible under Evidence section 352 because the probative value of the evidence is outweighed by a danger of undue prejudice, misleading the jury or will require an undue consumption of time. (Evid. Code, §§ 1101, subd. (a), 352; People v. Abilez (2007) 41 Cal.4th 472, 499.)
On appeal, we review the trial court's decision to admit prior acts for an abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.)
Analysis
The prior acts were not admissible under Evidence Code section 1101, subdivision (b) unless they were relevant to show something other than Mito's propensity to commit crimes, such as intent, motive, or a common plan or design. The probative value of such evidence depends on its similarity to the charged offense.
The Attorney General argues the prior acts shared distinctive characteristics with the charged crimes. Specifically, the Attorney General argues:
"During the rape, [Mito] was intoxicated, became amorous, removed his shirt, broke into a home, got on top of his sleeping victim, put his hand over her mouth and raped her. Similarly, in the instant case, [Mito] was intoxicated, became amorous, removed his shirt, went into the bedroom where Dustin and his brother were sleeping, crawled between them and faced Dustin, and began to kiss Dustin. In both cases [Mito] sought sexual gratification from an unwilling 'stranger' victim after becoming intoxicated."
Initially, we note, the victim did not testify Mito was intoxicated during the acts; she could not recall if he had been drinking. Mito testified only that he pleaded guilty in the prior case. Thus, a conclusion that in both cases Mito sought sexual gratification from an unwilling victim after being intoxicated, is not based on the evidence presented at trial.
During cross-examination, the prosecutor asked Mito if he became amorous when he is drunk. Mito stated that he did and stressed that his desire was "to be with a girl[,]" not with "a kid." Mito did not testify he was drunk during the prior acts.
We also disagree with the conclusion the prior acts were sufficiently similar to the charged act to warrant admission. The crime of committing a lewd act under section 288, subdivision (a) requires proof that the defendant touched the victim with an "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child." Thus, in this case, the prosecutor was required to prove that Mito's touching of Dustin was motivated by his sexual interest in children. The prior acts, however, did not involve any sexual conduct with children. Instead, they involved an adult woman. A sexual interest in an adult woman, including an interest in non-consensual relations with a woman, has little tendency to show a sexual interest in touching children. There were other dissimilarities between the prior acts and the charged offense. In the prior case, as was explained during the hearing to admit the evidence, Mito broke into a home through a window while in this case, Mito was an invited guest. In the prior case he engaged in forcible acts of penetration occurring over a period of hours while in this case there was only a brief touching. Because of the many significant dissimilarities, the prior acts did not tend to prove the existence of a common plan, scheme or design, intent or the absence of mistake or accident. We conclude the court abused its discretion in admitting the prior acts under Evidence Code section 1101, subdivision (b).
The prior acts were qualified for admission under Evidence Code section 1108 because they involved sexual offenses and Mito was charged with a sexual offense. The question is then whether the prior offenses were admissible over an Evidence Code section 352 objection, that is, whether the probative value outweighed a danger of undue prejudice. The record shows that the court's Evidence Code section 352 analysis was minimal. Prior to their admission, the court gave some consideration to whether the prior offenses were remote, but otherwise did not engage in any analysis, essentially ruling that because the prosecutor asked for the evidence to be admitted, the court would do so. Admission of the evidence, however, was clearly an abuse of discretion. The uncharged offenses were too dissimilar to the charged offenses and thus had little relevance to showing Mito had a propensity to molest children and they were inflammatory.
The error was prejudicial. This was a close case. While the evidence was sufficient to support a conviction of section 288, subdivision (a) as we explain in part II, post, it was also consistent with showing a drunk man stumbling unknowingly into the bed where a child was sleeping and inadvertently brushing his lips against the child's face with no intent to commit a lewd act. The touching itself was ambiguous as was Dustin's description of it. Dustin, at various times, stated that Mito was about to kiss him, that Mito kissed him on the left cheek, that Mito kissed him on the corner of the mouth. Additionally, at one point, Mito described the kiss as being like a good-night kiss. Moreover, it is apparent that Dustin's reaction—his scream and calling for his parents—was motivated as much by a man crawling into his bed as by any touching.
The prior case was inflammatory compared to the charged offense. While child molestation is a very serious offense and subject to strong condemnation, this case involved a relatively minor and brief touching and did not involve any forcible acts or penetration. The prosecutor recognized the potentially inflammatory nature of the prior acts when he told the jury during closing argument not to be "incensed" by the prior case. The prosecutor did not minimize the evidence, but stressed it was "important" evidence establishing Mito's guilt and essentially argued the prior acts showed Mito was a sexual predator. Thus, the prosecutor encouraged the jury to give this irrelevant, inflammatory evidence undue weight.
Our conclusion the error was prejudicial is confirmed by the trial court's comments at a motion for a new trial. The trial court, at the outset of the new trial hearing, when asked to act as the 13th juror, stated it found this to be "a very, very difficult case" due to the "the total dissimilarity" between the charged and uncharged offenses and indicated it was "really concerned about the weight the jury gave to the prior case in deciding the issue of guilt." Indeed, the court believed admission of the prior acts may have been "so prejudicial that [the jury] came back with a guilty verdict based solely on the nature of the prior incident." Ultimately, the court declined to act as a 13th juror, characterizing that as "the easy way out" and stating he believed the case needed "to be appealed so fresh eyes can take a look at this case and what I did in ruling on the admissibility of the evidence." Our fresh eyes see an erroneous admission of evidence that resulted in a miscarriage of justice and requires reversal of the judgment.
II
Sufficiency of the Evidence
Mito contends the evidence was insufficient to support a finding he had a lewd intent.
When an appellant challenges the sufficiency of the evidence to support a conviction, we do not determine the facts ourselves but examine the entire record in the light favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Bolden (2002) 29 Cal.4th 515, 553.) We presume the existence of every fact in support of the judgment that the trier of fact could reasonably deduce from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509; People v. Misa (2006) 140 Cal.App.4th 837, 843.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Little (2004) 115 Cal.App.4th 766, 771.)
Here, as we acknowledged in part I, ante, there was a certain ambiguity about the touching; it could have been an accidental touching, a good-night kiss, or a lewd act. It is also true that Mito denied that he had any sexual interest in children and denied touching Dustin. However, the jury was not required to believe Mito's testimony. The jury could reject as not credible Mito's claim that he was unaware that there were two children sleeping in the bed and instead conclude that knowing there were boys in the bed, he crawled into the bed and deliberately kissed Dustin. The jury could further infer from the nature of the touching—a kiss—that it was intended to arouse either Mito or Dustin.
III
Stranger
Mito contends the jury's finding that he was "a stranger to the child victim" as provided in section 1203.066, subdivision (a)(3) should be stricken because the provision was not intended to apply to relatives of the child.
Section 1203.066, prohibits probation when a defendant has been convicted of violating section 288 and certain other facts are found true by the trier of fact or admitted by the defendant. (§ 1203.066, subds. (a), (c).) These factors are enumerated in subdivision (a) of section 1203.066. Among these factors is that the defendant "was a stranger to the child victim or befriended the child victim for the purpose of committing [the lewd] act, . . . unless [the defendant] honestly and reasonably believed the victim was 14 years of age or older." (§ 1203.066, subd. (a)(3).)
However, we need not determine whether Mito was ineligible for probation under the stranger provision of section 1203.066, subd. (a)(3) because other statutory provisions rendered him ineligible. A true finding was made that Mito had three prior strike convictions: rape (§ 261), penetration with a foreign object (§ 289, subd. (a)) and forcible oral copulation (§ 288a, subd. (c)). Under the three strikes law, probation may not be granted to a person, such as Mito, who has been found guilty of a felony and who has prior strike convictions. (§ 667, subd. (c).) We also note that section 1203.066, subdivision (a)(5) prohibits granting probation to a person, such as Mito, who has been found guilty of section 288 and has a prior conviction for rape, penetration with a foreign object, or forcible oral copulation.
V
Remaining Contentions
Because we have reversed the judgment, we need not discuss Mito's remaining claims of instructional and sentencing error. These claims have either become moot or may be raised in the event of a retrial.
DISPOSITION
The judgment is reversed.
WE CONCUR: HALLER, J., McINTYRE, J.