Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Los Angeles County Super. Ct. No. KA075272. Affirmed.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Introduction
A jury convicted defendant Ralph Jesse Niz of five counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). On appeal, defendant contends the trial court abused its discretion in permitting the prosecution to offer evidence of two prior uncharged sex offenses involving minors. We find no abuse of discretion, and therefore affirm the judgment.
Procedural Background
Defendant Ralph Jesse Niz was charged in an information filed by the District Attorney of Los Angeles County with five counts of committing a lewd act upon a child, in violation of Penal Code section 288, subdivision (a). It was alleged as to all counts that the offenses involved multiple victims within the meaning of Penal Code section 667.61, subdivision (b); that defendant suffered five prior convictions of a serious or violent felony pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i); that defendant suffered three prior convictions of a serious felony pursuant to Penal Code section 667, subdivision (a)(1); and that defendant suffered one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant pleaded not guilty to all counts, and denied the special allegations. The trial court granted defendant’s motion to bifurcate the trial regarding his prior convictions and prison term.
A jury found defendant guilty on all counts, and found true the multiple victim allegation. In the court trial on the special allegations, the court found to be true four of the five strike allegations, two of the three prior conviction allegations, and the one prior prison term allegation.
Defendant was sentenced to a state prison term of 196 years to life, consisting of 15 years to life on count 1, tripled to 45 years to life pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), plus the same sentence of 45 years to life on counts 2 and 5, to run consecutively to count 1; in addition, on counts 3 and 4, defendant was sentenced to 25 years to life, pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), also to run consecutively to the sentence on counts 1, 2 and 5. The court also imposed an additional 11 years, to run consecutively to counts 1 through 5 (five years on each of the two prior convictions pursuant to Penal Code section 667, subd. (a)(1), and one year pursuant to Penal Code section 667.5, subd. (b) for the prior prison term).
This timely appeal followed.
Factual Background
Evidence Regarding the Charged Crimes
The three victims, Mary Jane S. (13 years old), Monique S. (10 years old), and Victoria S. (11 years old), are sisters. They also have an older sister, Justine V. (14 years old). Defendant is their great uncle. At the time of the events described here, they all lived in the home of the girls’ great-grandmother and defendant’s mother, Luz M., along with other family members as indicated below.
One morning, Mary Jane was sitting on the floor watching television, next to the air mattress on which defendant slept. Defendant put his hand on her buttocks and her breasts, touching and rubbing her skin beneath her pajamas. He pulled her toward him and put two fingers inside her vagina. He then told her to hold and rub his penis, and she described feeling “gooey stuff.” When defendant heard Luz coming down the hallway, he jumped up and went into the kitchen.
On another occasion in early 2006, Luz had a barbecue at her house. Mary Jane was grounded and had to stay in her bedroom. Mary Jane, Monique, Victoria and Justine shared one bedroom with their cousin Elizabeth. Mary Jane, Monique, and Victoria slept in the top bed of a bunk bed, and Elizabeth slept on the bottom. Justine had a single bed in the same room. Mary Jane’s sisters and cousins came into the bedroom and began dancing. Defendant was outside their bedroom window, and the girls asked to use his cellular phone to record their dancing. He handed the phone to Mary Jane through the window. Shortly thereafter, defendant came into the bedroom. Mary Jane was lying on Justine’s bed, using the phone to record the other girls dancing. Defendant took a blanket from the top bunk and put it on Mary Jane, then lay down behind her. He began touching her buttocks under her clothes, and put his fingers in her vagina. He then pulled down her top and took a picture of her breasts with his phone. He showed her the picture, and she took the phone and deleted it. Luz sent Justine to tell everyone to get out of the bedroom, because Mary Jane was grounded and was supposed to be alone. Everyone left, including defendant, but he returned a minute later. Mary Jane was standing next to the bunk bed. Defendant pulled her pants down, took out his penis, and started to stick it in her bottom. Just as he did so, one of her sisters came and told her she was supposed to go eat, so Mary Jane left the room.
Later that night, defendant came into the girls’ bedroom as they were sleeping. Mary Jane was sleeping on the top bunk along with Victoria and Monique; Mary Jane was nearest the rail. Defendant touched her buttocks, breasts, and vagina under her pajamas. He then left the room. Mary Jane switched places with Monique. Defendant came back into the room. He unbuttoned Monique’s shirt and began touching her chest and stomach. When he realized it was Monique and not Mary Jane, he abruptly left.
On a different occasion, Victoria was napping on the couch in the living room. She awoke and saw defendant standing over her. There was a pillow across her waist, her pants were unzipped, and defendant was touching her vagina with his hand. Her three sisters were sitting on the air mattress watching television in the same room. Victoria got up from the couch and asked her sisters to go into their bedroom with her.
Testimony Regarding Molestations of the Victims by Others
Mary Jane testified that another cousin, Al, had tried to put his penis in her bottom on two occasions, and threatened to drown her and her family in the pool if she did not do what he said. These incidents were reported to the police.
Victoria testified that Al also did something sexual to her. Another cousin, Raymond, told her to do something sexual to him.
Evidence Regarding Uncharged Crimes Involving Defendant
Thomas F. (nine years old) and his sisters, Michelle and Unique, sometimes lived with their great-grandmother, Luz, along with his cousins, Mary Jane, Monique, Victoria, and Justine. Thomas testified he was sitting on a couch in the living room, when defendant picked him up and moved him to another couch. Defendant sat down next to him and put a blanket over them. Defendant removed Thomas’s belt, put his hand inside the child’s pants, and touched him between his legs. Defendant took Thomas’s hand and put it inside defendant’s pants. Justine came over and led Thomas away, telling defendant not to touch her cousin.
Stephanie N., who was 24 years old at the time of trial, is the sister of the victims’ mother, and of Thomas’s mother. Defendant is her uncle. Stephanie testified that when she was 11 or 12 years old, she lived with her grandmother, Luz. Defendant also lived there. One evening while she was sleeping in her bedroom, defendant pulled her to the edge of her bed, put his knee on her thigh, and covered her mouth. He rubbed his penis on her vagina, then inserted his penis into her vagina. She did not tell anyone about it initially, because she did not think they would believe her. She eventually told various family members. Luz, her grandmother, did not believe her, and called her a liar. She also talked to a social worker about the incident.
Defense Evidence
Dora F., defendant’s sister, testified that Mary Jane’s grandmother, Pauline B., had told her that Mary Jane was molested by a cousin, Raymond V. Mary Jane was present when Pauline said this to Dora. Pauline then said that Mary Jane had made the whole thing up. Mary Jane did not say anything. Pauline denied ever having such a conversation.
Lucy M., sometimes referred to as Aunt Beetle, is another of defendant’s sisters. Lucy also lived in Luz’s home during the time of the events at issue here. Lucy said that Mary Jane told her she was molested by her father, Paul S., by her grandfather, Rudy C., and also by a cousin, Al.
The victims’ great-grandmother, Luz, testified that Justine told her defendant had molested Mary Jane, but Mary Jane denied it when Luz asked her. Luz asked defendant if he had molested Mary Jane, and he adamantly denied it. The girls had also accused their cousin, Al, of molesting them. She reported this to the police, but she was not aware that anything happened to Al as a result.
Luz stated that defendant did not live at her house when Stephanie lived there. She denied that Stephanie had ever told her that defendant molested her.
Luz said the barbecue was on January 20 or 21, 2006. At around 3:00 a.m., she saw defendant asleep or passed out on a chair outside. Someone carried him inside to the couch.
Danny Sanchez, the boyfriend of one of defendant’s sisters, was at the barbecue. He was with defendant most of the evening. They played cards until midnight or 1:00 a.m. Danny said he carried defendant to the couch in the living room at around 4:30 or 5:00 in the morning.
Detective Alfonso Lopez interviewed Mary Jane. She told him that during the incident with defendant on the air mattress in the living room, defendant touched her over her pajamas, not on her skin. She told him, however, that defendant put his fingers in her vagina. Lopez also interviewed Thomas, and he told Lopez that defendant touched him over his pants, not on his skin. Thomas said defendant put Thomas’s hand inside defendant’s pants and made him touch his private part.
The suspected child abuse report Lopez obtained regarding Stephanie’s molestation indicated that defendant had rubbed his penis on her vagina, but did not penetrate her.
Discussion
Defendant’s sole contention on appeal is that the trial court’s ruling permitting the introduction of evidence about his molestations of Stephanie and Thomas constituted an abuse of discretion requiring reversal. We disagree.
1. Factual and Procedural Background
Prior to trial, the prosecutor moved to introduce evidence of defendant’s molestation of Thomas and Stephanie, pursuant to Evidence Code section 1108. The prosecutor noted that the molestation of Thomas occurred very close in time to the charged molestations, while the incident with Stephanie had occurred about 11 years earlier. The prosecutor also described the specifics of the uncharged incidents. Defense counsel sought to exclude the evidence under section 352. He argued that “we’re going to be doing two trials.” He stated that because of Thomas’s age, Thomas might not be competent to testify, and argued that the evidence was offered solely for the purpose of “trying to dirty up” the defendant. As to the incident with Stephanie, defense counsel pointed out that defendant had not been prosecuted for his misconduct, and argued against “trying a case which is ten years old in the middle of our case.” He argued that the acts alleged were not similar, in that Stephanie said defendant had sexual intercourse with her, and Thomas’s testimony involved masturbation. Also, Thomas was male, while the victims were all female.
All undesignated section references are to the Evidence Code.
The trial court overruled the defense objection to Stephanie’s and Thomas’s testimony. After noting the factors to be considered pursuant to section 352, the court expressed doubt that the evidence would mislead the jury or confuse the issues. The court found that the testimony would not involve undue consumption of time, and would not cause undue prejudice, noting that “[t]he nature of the charges in our case are by themselves relatively inflammatory.” The court found that the testimony “would give the jury a point of view to be able to evaluate the nature of the charges in our case in the whole.”
Accordingly, during trial, Stephanie and Thomas testified as set forth in our prior summary of the trial evidence.
The pattern CALJIC instruction, No. 2.50.01 (“Evidence of Other Sexual Offenses”), was submitted to the jury. The instruction explained, among other things, that the possible inference to be drawn from the evidence, if any, that defendant had a disposition to commit sexual offenses, was “simply one item for you to consider, along with all other evidence” in determining defendant’s guilt; that it was “not sufficient by itself to prove beyond a reasonable doubt that [defendant] committed the charged crimes”; and that unless otherwise instructed, the jury “must not consider this evidence for any other purpose.” In addition, CALJIC No. 10.44 (“Lewd Act with Child—Evidence of Other Offenses—Other Children”) was given, which stated in part that the jury could consider “[e]vidence as to lewd acts with other children . . . as tending to show, if it does show, defendant’s intent at the time of the alleged crime charged,” and that the jury “must not convict the defendant of any crime with which he[/]she is not charged.”
2. Discussion
Section 1108, subdivision (a) provides, in pertinent part: “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.” Section 352 grants the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice.”
“‘In enacting Evidence Code section 1108, the Legislature decided 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.’ [Citation.])” (People v. Britt (2002) 104 Cal.App.4th 500, 505-506.) Sex crimes frequently are committed in secret, without corroborating witnesses or evidence, and trials in such cases often are pure credibility contests between alleged victims and defendants, involving determinations of the defendant’s disposition to commit such crimes and whether the victim has falsely accused the defendant. (See People v. Falsetta (1999) 21 Cal.4th 903.) Section 1108 passes constitutional muster because the trial court has the discretion to exclude the evidence. (People v. Falsetta, supra, 21 Cal.4th at pp. 911-912.) We review the admission of evidence under section 352 and section 1108 for an abuse of discretion. (Id. at pp. 916-920.)
We observe that the trial court here also noted that the evidence would be admissible under section 1101, subdivision (b) (under which other crime evidence may be admissible to prove certain facts such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident”). In People v. Ewoldt (1994) 7 Cal.4th 380, 404-406, the Supreme Court discussed a number of factors that should be considered in making a judgment, pursuant to section 352, about the admissibility of evidence of uncharged offenses, where introduction is sought under section 1101, subdivision (b). In People v. Harris (1998) 60 Cal.App.4th 727, 737-741, the Third District applied the same criteria to admission of evidence proffered under section 1108. (See People v. Branch (2001) 91 Cal.App.4th 274, 282.) On appeal, defendant has advanced no argument supporting a claim that the court abused its discretion in admitting the testimony under either section, except the claim that the court did not properly exercise its discretion under section 352. Thus, our analysis would be the same whether the evidence was admitted pursuant to section 1101, subdivision (b), or pursuant to section 1108.
Pursuant to Evidence Code section 352, the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-920; see People v. Branch, supra, 91 Cal.App.4th at p. 282.)
Defendant acknowledges that the incident with Thomas allegedly occurred very close in time to the acts that were the basis of the charged crimes. He argues, however, that the probative value of Thomas’s testimony was diminished by his gender, as all of the other victims were girls. He further contends that a probability of confusion arose from the fact that defendant had not been prosecuted or punished for his alleged misconduct toward Thomas, and the jury might have wished to punish defendant for that misconduct, especially given Thomas’s young age. Finally, he contends that because Thomas was young he was therefore easily susceptible to influence, and that “it was apparent all of the children were to one degree or another under the sway of warring adult factions within the family.”
Defendant points to incidents mentioned in the record during which various family members were heard arguing in the hallway, with the children present.
The distinction regarding Thomas’s gender does not support defendant’s argument because section 1108 does not contain “‘exacting requirements of similarity between the charged offense and the defendant’s other offenses.’” (People v. Soto (1998) 64 Cal.App.4th 966, 984.) Although it is true that defendant’s other victims were female, we note that defendant’s conduct with Thomas was similar in certain particulars to his charged crimes. Thomas said defendant put a blanket over the two of them to obscure the view of others present in the room, then touched Thomas’s genitals, and later put Thomas’s hand on defendant’s genitals. This was strikingly similar to the allegations that defendant covered Mary Jane with a blanket before fondling her, and also covered Victoria with a pillow before fondling her, while others were present in the room.
Regarding the fact that defendant was not prosecuted for molesting Thomas, it has been recognized that if the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues “because the jury [has] to determine whether the uncharged offenses [in fact] occurred.” (People v. Ewoldt, supra, 7 Cal.4th at p. 405. See also People v. Harris, supra, 60 Cal.App.4th at pp. 738-739; People v. Branch, supra, 91 Cal.App.4th at p. 284.) However, the record provides no evidence to support that hypothesis. The jurors asked one question of the court during deliberations, regarding count 3. In no way did the question relate to issues of “other offenses,” generally, or Thomas’s (or Stephanie’s) testimony, specifically. (See People v. Branch, supra, 91 Cal.App.4th at p. 284.) The jury was clearly instructed on the limited purpose for which it could use the evidence of the uncharged conduct. In addition, while Thomas was younger than the victims, he was not significantly younger, and the acts of which he accused defendant were no more inflammatory than the acts which formed the basis of the charges. This circumstance decreased the potential for prejudice, because it was unlikely that the jury disbelieved the testimony of the three victims regarding the charged offenses but nevertheless convicted defendant on the strength of Thomas’s testimony regarding the uncharged offense, or that the jury’s passions were inflamed by the evidence of defendant’s uncharged offenses. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
Finally, we address defendant’s assertion that Thomas’s age made him more subject to being influenced by others, and that the record shows the children were “under the sway of warring adult factions within the family.” We find no actual support in the record for either the contention that Thomas was influenced by anyone, or that he was “under the sway” of one or another “warring adult factions” in the family. Not surprisingly, there was apparently anger and tension among family members, some of whom believed the children and some of whom did not, with regard to the children’s allegations that defendant had molested them. There is absolutely no indication, however, that the anger and tension caused the allegations to be made in the first place. Rather, it appears that the anger and tension were the result of the fact that some members of the family believed the allegations and others did not. In short, there was no evidence that any of the children were influenced to testify as they did because a family member told them to do so.
Regarding Stephanie’s testimony, defendant argues on appeal that the testimony was more inflammatory than the conduct giving rise to the charges because it “involved forcible rape, rather than opportunistic and brief touchings and digital penetration.” Defendant overstates the distinction between what Stephanie said occurred and what the victims alleged. It was unclear from Stephanie’s testimony how long the assault on her lasted; the impression given is that it could have been relatively brief. On the other hand, Mary Jane stated, for example, that the incident on the air mattress might have lasted as long as an hour or more. It is true that Stephanie said that defendant penetrated her vagina with his penis, which perhaps might be understood to be more serious than digital penetration. However, some of the conduct of which defendant was accused with regard to the charged victims, such as apparently forcing Mary Jane to masturbate him until he ejaculated, was also highly offensive.
Defendant also argues that a substantial probability of confusion of issues existed, because the jury was required to sort through conflicting evidence about whether the incident with Stephanie could have occurred, and there was some confusion over the timing of the suspected child abuse report obtained by Detective Lopez regarding Stephanie’s molestation. We conclude, however, that there was no probability of confusion of issues. The jury was simply called upon to weigh Stephanie’s credibility in saying the molestation occurred, against Luz’s statement that defendant did not live in her home when Stephanie was there. Stephanie’s testimony was buttressed by the existence of the suspected child abuse report which, regardless of exactly when it was generated, predated the allegations by the charged victims in the case by many years. The evidence regarding Stephanie’s molestation by defendant was precisely the type of “independent source” of evidence that is considered to be highly probative. (See, e.g., People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Kipp (1998) 18 Cal.4th 349, 371.)
Finally, we conclude that the prior sex crime evidence from Thomas and Stephanie had substantial probative value to assist the jury in deciding whether defendant had a disposition to seek sexual gratification from contact with children, regardless of the precise nature of the acts involved. We agree with the trial court that evidence of defendant’s prior sexual misconduct with Stephanie and Thomas was admissible pursuant to section 1108 to show propensity and to assist the jury in determining the credibility of the victims of the charged crimes. The jury had to decide whether the children were telling the truth with regard to the sexual assaults, where there was no corroborating physical evidence as to any of the sexual contact. Evidence that defendant had a disposition to commit criminal sexual acts with children was relevant to help the jury make that determination.
Accordingly, we conclude that the trial court acted well within the bounds of its discretion in admitting the evidence after finding it to be sufficiently probative, and not unduly inflammatory, remote, confusing, or time-consuming. (See People v. Soto, supra, 64 Cal.App.4th at pp. 990-992; cf. People v. Harris, supra, 60 Cal.App.4th at pp. 736-741.) We find no error in the admission of Stephanie’s and Thomas’s testimony.
In any event, even were we to conclude that the admission of the evidence was an abuse of the trial court’s discretion, any error in that regard was harmless under both state (People v. Watson (1956) 46 Cal.2d 818, 836) and federal (Chapman v. California (1967) 386 U.S. 18) harmless error analysis. The victims corroborated one another’s testimony, and their older sister, Justine, also provided corroboration. The evidence against defendant was overwhelming.
Disposition
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.