Opinion
F084276
08-21-2023
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO RIVERA MONTELLANO, JR., Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. CR20001302, Shawn D. Bessey, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
Defendant Ernesto Rivero Montellano, Jr., was convicted of sexual penetration by a foreign object with a victim under the influence, sexual penetration of a minor and misdemeanor unlawful touching of another person, all involving the same victim, Jane Doe. Montellano contends (1) the trial court erred by admitting evidence of Montellano's prior uncharged sexual offense and (2) admission of the uncharged offense violated his federal due process rights. The People respond that the evidence of Montellano's prior uncharged sexual offense was properly admitted and any error in admitting the evidence was harmless. The People also argue that admission of the evidence did not violate Montellano's federal due process rights. We affirm.
PROCEDURAL SUMMARY
On March 8, 2022, the Stanislaus County District Attorney filed a first amended information charging Montellano with: sexual penetration by a foreign object of a victim under the influence (Pen. Code, § 289, subd. (e); count 1); penetration by any foreign object (Pen. Code, § 289, subd. (h); count 2); and misdemeanor unlawful touching of another person (Pen. Code, § 243.4, subd. (e)(1); count 3).
On March 9, 2022, the jury found Montellano guilty on all counts.
On April 6, 2022, the trial court sentenced Montellano to a total of six years as follows: six years (the middle term) on count 1; two years (the middle term) on count 2, stayed pursuant to Penal Code section 654; and 180 days on count 3 to run concurrent with the sentence on counts 1 and 2.
Montellano filed a timely notice of appeal on April 25, 2022.
FACTUAL SUMMARY
A. Sexual Offenses Against Jane Doe
On October 19, 2019, Jane Doe went to a party at T.C.'s house in Modesto. T.C., the sister of Montellano's wife V.M., was throwing a birthday party for her mother mixed with a Halloween party. Jane Doe was friends with T.C. and T.C.'s other sister, D.S., and was invited to the party by D.S. Montellano was at the party with his wife and their two children. Montellano was in a onesie skeleton costume and was wearing glasses. V.M. introduced Jane Doe to Montellano at the party. There were about 30 to 40 people at the party.
Jane Doe was born in February 2003 and was 16 years old on October 19, 2019. Montellano was born on July 11, 1989, and was 30 years old on October 19, 2019.
After a couple hours at the party, Jane Doe was in the kitchen with D.S. Montellano started talking to Jane Doe and giving her shots of alcohol. Montellano gave Jane Doe "shot after shot" for a total of eight to 10 shots. Jane Doe did not see Montellano giving alcohol to anyone else. Jane Doe began feeling the effects of the alcohol while taking shots. She felt sick and dizzy, and was having a hard time walking around.
Jane Doe went to look for D.S. D.S. took Jane Doe to sleep in her room, which is toward the back of the house. D.S. left Jane Doe in the bedroom with the lights off and the door closed. Jane Doe fell asleep in one of the two beds in the room.
Jane Doe woke up in the night when she felt a person get into bed with her. Jane Doe thought it was D.S. but realized it was not D.S. because the body was bigger and the person put their arms around Jane Doe. Jane Doe did not think D.S. would put her arms around Jane Doe. Jane Doe could see Montellano's face and felt his glasses on his face. She remembered he was the only person at the party she saw wearing glasses. Jane Doe could also see Montellano's skeleton costume that he was still wearing. Montellano touched Jane Doe's breasts over and under her clothes with his bare hand. Montellano put his hand into Jane Doe's pants and put his fingers inside her vagina for a few minutes. He told Jane Doe to be quiet. Jane Doe said "Stop" to Montellano. Montellano grabbed Jane Doe and put her on top of him. Jane Doe felt like she could not move or scream because she was still intoxicated.
Montellano picked Jane Doe up and carried her out of the room through the sliding glass door into the backyard. Montellano took Jane Doe to the side of the house and set her down on the ground. Montellano turned his back on Jane Doe and began unzipping his costume. As he was unzipping his costume, Jane Doe quietly walked away around the corner and back into the house through the same sliding glass door. Jane Doe saw T.C. when she got back in the house. T.C. tried to talk to Jane Doe who was crying and unable to talk. T.C. and Jane Doe ran upstairs to T.C.'s room. Montellano chased T.C. and Jane Doe. T.C. locked Jane Doe in her room with D.S.
B. Testimony of Percipient Witnesses
After midnight on the night of the party, T.C.'s wife, B.C., went to sleep by herself on the couch in the back living room by D.S.'s room. B.C. was still partially awake when she heard somebody walking and she turned over. B.C. saw Montellano open the door to D.S.'s room and go into the room. B.C. turned over and went back to sleep.
T.C. went upstairs to her bedroom to go to sleep at "about 2:00 or 3:00 a.m." T.C. saw Montellano sitting on the edge of the couch in the front living room with his wife lying next to him before she went upstairs. T.C. was unsure if Montellano was still awake.
T.C. awakened in the night when she heard the back sliding glass door open because the door is right underneath T.C.'s bedroom. T.C. got up and stuck her head out of the window to look outside. T.C. saw Montellano carrying Jane Doe in front of him and taking Jane Doe to the right side of the house.
T.C. hit her friend M.M. who was sleeping in the room and told M.M. to go outside with her. T.C. ran downstairs with M.M. and out the front door. T.C. got to the front yard and went towards the right side of her house. T.C. saw Montellano coming out from the side gate zipping up his onesie. T.C. said to Montellano," 'What the f**k are you doing?'" Montellano said back," 'What are you doing?'" T.C. said" 'What the f**k are you doing out here?'" T.C. turned around and ran back in the house, passing M.M. as she went.
T.C. met Jane Doe inside the house. Jane Doe was sobbing. T.C. asked Jane Doe what happened and Jane Doe said" 'He was all over me.'" T.C. asked" 'Who?'" Jane Doe did not know Montellano's name but described him to T.C. as tall, wearing glasses and in a skeleton costume.
Montellano came to T.C.'s bedroom and began pounding on the door. Montellano asked T.C. to let him in to get his stuff. T.C. asked her friend M.M. to let Montellano in and give his belongings to him. M.M. opened the door and gave Montellano his duffel bag.
After T.C. spoke with Jane Doe, she went downstairs. Montellano was changing clothes out of his skeleton costume. T.C. said to Montellano," 'I know what I seen.'" Montellano said" 'What the f**k are you talking about?'" T.C. said" 'You know. You know what I seen.'" Montellano said" 'You know what this is going to do to us, right?'" V.M. was waking up and said to T.C." 'What the f**k are you talking about [T.C.]? What's going on?' "
T.C. and V.M. went into T.C.'s bedroom where T.C. told V.M. about seeing Montellano carrying Jane Doe out. Montellano and V.M. got their things and their children from the upstairs bedroom and left T.C.'s house. T.C. called 911.
C. Law Enforcement Investigation
Modesto Police Officer John Heilman was dispatched to T.C.'s house and arrived close to 7:00 a.m. the morning after the party. Heilman took a statement from Jane Doe. Jane Doe told Heilman that Montellano gave her two to three shots of alcohol at the party. Jane Doe also said that at about 10:00 p.m. everybody started to leave the party and she was getting cold and tired. Jane Doe was cuddling with C.S., V.M.'s brother, and others at the party were yelling at her for flirting with C.S.
Jane Doe told Heilman about Montellano getting into bed with her and how at first she thought Montellano was D.S. Jane Doe said she laid still because she was afraid whoever was in bed with her was going to hurt her. Then the person reached up under her shirt touching her breasts. The person unbuttoned her pants and put their hand down her pants, penetrating her vagina with their fingers. At one point, the person took Jane Doe's leg and put it over his like he was trying to have her straddle him. Jane Doe told Heilman that the person was getting close to having sexual intercourse with her, but then picked her up and took her outside. Once the person got Jane Doe outside, he put her down on the side yard and it seemed to Jane Doe like he was urinating. Jane Doe walked back into the house after she was put down.
Heilman showed Jane Doe a photo of Montellano from the California DMV database. Jane Doe did not identify Montellano as the one who was in bed with her based on this photo.
A DNA buccal swab sample was taken from Jane Doe's vagina as part of a sexual assault examination at Memorial Medical Center on October 20, 2019. The Modesto Police Department collected a voluntary DNA buccal swab sample from Montellano on December 28, 2020. A senior criminalist with the California Department of Justice, Jennai Lawson, conducted DNA testing of the samples collected from Jane Doe and Montellano. Lawson got a haplotype genetic profile from the vaginal swab that was the same as Montellano's haplotype. Lawson concluded that neither Montellano nor any of his patrilineal male relatives could be excluded as the source of the male DNA from the vaginal swab. Lawson confirmed the test results did not pinpoint Montellano as the source.
D. Prior Uncharged Sexual Misconduct
On New Year's Eve in 2015, T.C. went to a party with Montellano and Montellano's wife, V.M. After the party was over, Montellano and V.M. went with T.C. back to her old apartment in Modesto. T.C. was intoxicated and sleeping in her bedroom when she woke up because she felt a pinch on her nipple under her shirt. When T.C. woke up Montellano was on top of her. Montellano said "Oh, you were throwing up." T.C. looked around for her wife. Montellano said "You were throwing up, [T.C.]. I was just trying to help you." T.C. and Montellano both got up. Montellano went to the other room. T.C. got her wife and asked her to come to bed with her. T.C. told her wife about what Montellano did but told her never to speak of it. T.C. did not report the incident to the police or confront Montellano or V.M. about it.
E. Defense Evidence
Montellano testified at trial. Montellano denied touching T.C.'s nipple on New Year's Eve in 2015.
Montellano testified about the party at T.C.'s house on October 19, 2019. He denied serving drinks to anyone during the night although he testified to handing drinks to adults after the initial party setup. He also denied serving alcohol to Jane Doe. Montellano confirmed he was introduced to Jane Doe but denied any other conversation with her during the party.
After the party, Montellano went to sleep with his wife in the front living room. Montellano was supposed to sleep in the room where Jane Doe was sleeping but was told the beds in there were taken. Montellano woke up between 2:00 and 3:00 a.m. Montellano was still in his onesie costume and wanted to change into his pajamas. He told his wife he was going to go change. Montellano went to look for his bag in the bedroom where Jane Doe was sleeping. He opened the door and turned on the light in the room. Montellano saw his sister in the bed directly in front of the door and Jane Doe in the bed to the right of the door. Montellano did not see his bag so he turned off the light and closed the door.
Montellano decided to go out the sliding door to the backyard to go around to the front of the house. Montellano heard T.C. say" 'I see you'" after he went out the sliding door. He looked up and said" 'Okay.'" T.C. confronted Montellano outside and asked" 'What are you doing?'" Montellano said" 'I'm going to my car to get my stuff so I can change.'" T.C. said" 'I seen you.'" Montellano responded" 'What are you talking about?'" T.C. then turned to go back into the house and M.M. walked out. Montellano asked M.M." 'What's [T.C.]'s deal?'" M.M. said" 'I don't know.'" Montellano went to his car and got his bag from the trunk. Montellano then followed M.M. back into the house.
T.C. was running up the stairs saying" 'I seen you.'" Montellano asked T.C. what she was talking about and T.C. explained that Montellano was with Jane Doe touching her. T.C. told Montellano she saw him carrying Jane Doe and Jane Doe says" 'you were all over her.'" Montellano told T.C." 'Look, if you feel that something wrong was done, call the cops.'" T.C. said she was not going to call the cops. Montellano said it was time for them to leave and V.M. agreed.
Montellano's wife, V.M., also testified at trial. V.M. did not remember Montellano serving drinks to other people at the party. At one point, V.M.'s aunt told V.M. it "doesn't look right" about Jane Doe and C.S. cuddling on the couch. V.M.'s aunt knew C.S. was an adult and Jane Doe was not. V.M. said to C.S. and Jane Doe" 'Hey, what are you guys doing?'" and they said" 'Oh, we were just talking.' "
V.M. confirmed that Montellano woke her up during the night and said he was going to get his bag. About five minutes after that, V.M. was still half asleep and heard T.C. yelling. T.C. kept saying" 'I seen you. I seen you. I seen him. I seen him.'" V.M. went upstairs with T.C. where Jane Doe was sitting on an inflatable bed. T.C. told Jane Doe to tell V.M. what happened. Jane Doe explained that somebody was touching her. T.C. said it was Montellano. V.M. asked Jane Doe" 'Was it my husband?'" Jane Doe said" 'No. I don't know.'" V.M. changed and went back downstairs. She confirmed it was her idea to leave then.
DISCUSSION
I. Admission of Prior Sexual Offense
Montellano contends the trial court abused its discretion by failing to exclude T.C.'s testimony about the prior uncharged sexual offense under Evidence Code section 352 and admission of this evidence deprived Montellano of his right to a fair trial. He also contends admission of this evidence violated his federal due process rights requiring reversal of the convictions.
All further statutory references are to the Evidence Code unless otherwise stated.
A. Additional Background
Prior to trial, the prosecutor filed a motion in limine to admit as evidence the testimony of T.C. regarding the prior uncharged sexual offense pursuant to section 1108. The prosecutor argued that Montellano had previously committed uncharged sexual offenses against T.C. The prosecutor anticipated that T.C. would testify that in 2015 she woke up to Montellano putting his hand up her shirt while she was intoxicated, a violation of Penal Code section 243.4, subdivision (e).
On the first day of trial, the trial court addressed the prosecutor's motion to admit testimony from T.C. about the prior uncharged sexual offense. Defense counsel objected to admission of this evidence arguing that it was remote in time, there was never an arrest or report filed, and T.C. was intoxicated at the time, rendering her unreliable. Defense counsel argued the evidence was highly prejudicial under section 352, would be distracting to the jury, and prevent the jury from giving Montellano a fair and impartial trial.
The court ruled the evidence about the prior sexual offense involving T.C. was admissible under section 1108. In reaching its ruling, the court found that the offense was not "too remote to be overly prejudicial compared to the probative value." The court found that the prior offense "is a similar pattern of conduct by [Montellano], similar pattern in the sense of taking advantage of somebody who is either intoxicated or under the influence or in a lesser light of ability to resist or combat an advance, an unwanted advance." The court acknowledged that the prior offense "is lesser in the sense that there was no digital penetration in the previous event." The court also considered that T.C. was the reporting party in the present charges as "the reason why it's so alerting to [T.C.] is probably her prior experience with [Montellano]."
The court inadvertently referred to section 1109 in initially discussing the ruling, but later clarified that the evidence was being admitted under section 1108.
B. Challenge Under Section 352
Character or propensity evidence "is inadmissible when offered by the opposing party to prove the defendant's conduct on a specified occasion (§ 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act (§ 1101, subd. (b))." (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) Section 1108 provides an exception to this general rule: "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." (§ 1108, subd. (a); People v. Baker (2021) 10 Cal.5th 1044, 1089 [§ 1108 provides an exception to the general rule against propensity evidence].) Under section 352, the trial court "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." (§ 352.)
"Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes." (Falsetta, supra, 21 Cal.4th at p. 915.) "The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova).) Factors to consider in determining whether to admit section 1108 evidence include: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117; Falsetta, at p. 917.) We review the trial court's admission of section 1108 evidence for abuse of discretion. (Cordova, at p. 132.)
"Sex crime trials inevitably turn on whether the defendant has been falsely accused. The central issue in these cases commonly involves not just whether the conduct took place as the victim described it, but whether the defendant was the one who perpetrated it." (People v. Britt (2002) 104 Cal.App.4th 500, 506.) Defense counsel argued at trial that the prosecution did not establish beyond a reasonable doubt that Montellano and not a different person got into bed with Jane Doe. "Where contested, the identity of the defendant as the perpetrator is obviously a disputed issue of fact. The introduction of other crimes evidence to prove identity thus constitutes a 'relevant purpose'" under section 210. (Id. at p. 505.) The prior uncharged sexual offense against T.C. was highly probative on the disputed issue of identity of Jane Doe's assailant. T.C.'s testimony indicated that Montellano had previously engaged in similar conduct of getting into bed and unlawfully touching an intoxicated and unconscious female. This evidence assisted "the jury's task by allowing the accused's sexual misconduct history to be considered for whatever light it might shed on [the disputed] issues, including a defendant's claim of mistaken identity." (Id. at p. 506.)
Defense counsel discussed in closing argument Jane Doe's lack of identification of Montellano to Officer Heilman and other possible suspects: "It could have been [D.S.]. It could have been another man. It could have been [C.S.]. It could have been anybody. She never identified that person to Officer Heilman what this person was wearing, that she felt this person's face. She never told Officer Heilman any identifying markers about this person. [¶] And when shown a California driver's license photo of [Montellano], she couldn't identify him."
Section 210 states:" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
Montellano argues the misconduct involving T.C. was highly inflammatory and unduly prejudicial because the conduct was factually dissimilar to the charged offenses.The similarity of the charged and uncharged offenses is a relevant factor to consider in determining whether to admit evidence of prior sexual misconduct. (Falsetta, supra, 21 Cal.4th at p. 917; Cordova, supra, 62 Cal.4th at p. 133.) Yet "[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41; see also People v. Britt, supra, 104 Cal.App.4th at pp. 505-506 [the "signature test" outlined in People v. Ewoldt (1994) 7 Cal.4th 380 to evaluate admissibility of uncharged misconduct "is no longer the yardstick for admission of uncharged sexual misconduct to prove identity" per § 1108].)
We reject Montellano's other contention that T.C.'s testimony lacked probative value because she admitted she was intoxicated at the time of the uncharged offense. While evidence of intoxication is relevant to a witness's capacity "to observe" and "recollect" (In re D.L. (1975) 46 Cal.App.3d 65, 74, superseded on another ground as recognized in In re Jose M. (1994) 21 Cal.App.4th 1470, 1480), T.C.'s intoxication goes to the weight of her testimony, not its admissibility. The jury was specifically instructed to consider "How well could the witness see, hear, or otherwise perceive the things about which the witness testified?" in determining witness credibility per CALCRIM No. 226.
We disagree the uncharged and charged offenses here were factually dissimilar. The trial court recognized the offenses showed "a similar pattern of conduct" of Montellano taking advantage of a person less able to resist unwanted advances because the victim is under the influence. Jane Doe and T.C. were both intoxicated and sleeping when Montellano touched them. In both incidents, Montellano got into bed with a person familiar to him and began touching the victim's breast. The prior and charged offenses both constituted sexual battery in violation of Penal Code section 243.4, subdivision (e)(1). Penal Code section 243.4 is listed among the Penal Code sections identified as "sexual offenses" in Evidence Code section 1108, subdivision (d)(1)(A). (§ 1108, subd. (d)(1)(A).) Although there are factual dissimilarities between the offenses, "any dissimilarities in the alleged incidents relate only to the weight of the evidence, not its admissibility." (People v. Hernandez (2011) 200 Cal.App.4th 953, 967.)
That the allegation for T.C. involved only "a single touching of the breast" as described by Montellano makes the evidence less prejudicial, not more so. The offenses against Jane Doe included sexual penetration of a minor. Evidence of the prior uncharged offenses against T.C. was less inflammatory because T.C. was an adult and there was no allegation Montellano touched her elsewhere besides her breast. (People v. Loy (2011) 52 Cal.4th 46, 62 [evidence of prior crimes was no more inflammatory than the charged crimes].)
Montellano also contends T.C.'s testimony was unduly prejudicial because he had no prior opportunity to defend against the accusation or gather evidence in support of his innocence during the relevant time. There is nothing in the record to suggest the passage of time caused Montellano to lose evidence about T.C.'s allegations that would otherwise have been available.
We further disagree that T.C.'s testimony about the prior sexual offense was unduly prejudicial or confused the issues because she also testified as a percipient witness to the charged offenses. Montellano argues this improperly charged the jury with evaluating T.C.'s credibility regarding the prior offense as well as her credibility regarding the offenses against Jane Doe. It is well established that jurors may "accept one portion of a witness's testimony while rejecting another." (People v. Robinson (1964) 61 Cal.2d 373, 389.) The jury was thus instructed regarding witness testimony: "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (CALCRIM No. 226.) The jury remained free to accept those portions of T.C.'s testimony it found credible and reject those it did not. (In re Ferrell (2023) 14 Cal.5th 593 ["Jurors remained free to pick and choose those portions of evidence they found credible,' "weaving a cloth of truth"' from available materials."].)
Montellano further contends the inflammatory nature of the evidence was increased because the jury never learned whether Montellano was prosecuted or convicted for the prior offense, increasing the danger that the jury would want to punish him for that conduct. (See Falsetta, supra, 21 Cal.4th at p. 917 ["the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses"].) Montellano argues the trial court did not consider this issue when overruling the defense objection under section 352.
The trial court's discussion of its ruling shows it understood and conducted the required section 352 balancing analysis. The court considered the remoteness of the prior offense, the similarities and dissimilarities between the offenses, and assumed that T.C.'s past experience may have affected her understanding of what she saw Montellano doing with Jane Doe. The court did not abrogate its duty to conduct the required section 352 determination because it did not expressly discuss the lack of a conviction for the prior offense. (See e.g., People v. Taylor (2001) 26 Cal.4th 1155, 1169 ["a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352"].)
The jury was specifically instructed on the purposes for which it could use evidence about the prior uncharged sexual battery pursuant to CALCRIM No. 1191A. If the jury concluded Montellano committed the uncharged offense, the jury "may, but [was] not required, to conclude from that evidence that [Montellano] was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that [Montellano] was likely to commit sexual penetration with a foreign object (counts l &2) and sexual battery (count 3), as charged here." The jury was further instructed that a conclusion that Montellano committed the uncharged offense was "not sufficient by itself to prove that [Montellano] is guilty of sexual penetration with a foreign object and/or sexual battery." The instructions specified that "[t]he People must still prove the charges beyond a reasonable doubt" and admonished the jury not to "consider this evidence for any other purpose." We presume jurors follow instructions absent a showing to the contrary. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 821.) The jury instructions adequately precluded the jury from seeking to punish Montellano for the uncharged offense. (People v. Hernandez, supra, 200 Cal.App.4th at p. 969 [the jury instructions combined with the fact that the offenses were no more egregious than the charged offenses "foreclosed the risk the jury would consider the evidence for a prohibited purpose"].)
In sum, the trial court conducted the appropriate analysis and found the probative value of the prior offense was not substantially outweighed by any prejudice. Montellano has not shown that the court abused its discretion.
C. Federal Due Process Challenge to Section 1108
Montellano acknowledges that the Supreme Court in Falsetta held that section 1108 does not violate federal due process rights and that this court is bound by Falsetta. (Falsetta, supra, 21 Cal.4th at pp. 917-918.) Our Supreme Court has repeatedly declined to revisit its holding in Falsetta on this issue. (People v. Loy, supra, 52 Cal.4th at pp. 6061; People v. Baker, supra, 10 Cal.5th at pp. 1089-1090; People v. Rhoades (2019) 8 Cal.5th 393, 415; People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 827.) We are bound by our Supreme Court's ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we reject Montellano's due process challenge to section 1108.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PENA, Acting P. J., DE SANTOS, J.