Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. P05CRF0281.
HULL, J.
A jury convicted defendant Robert Scott Paig of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5; unspecified section references that follow are to the Penal Code) and lewd and lascivious conduct committed on another child (§ 288, subd. (a)). The jury found multiple victims to be involved, and also found charged priors to be true. The trial court sentenced defendant to an aggregate prison term of 100 years to life.
On appeal, defendant contends that (1) evidence of uncharged sex offenses should have been excluded under Evidence Code section 352; (2) the court erred in modifying the jury instruction relating to other sex offenses; (3) the jury, rather than the court, should have determined whether defendant was the person involved in the charged priors; and (4) the court erred in imposing a $70 AIDS education fine. Only this last claim has merit. We strike the fine and otherwise affirm the judgment.
Facts and Proceedings
Defendant sexually abused his girlfriend’s young daughter, M.M., when she was in grade school. On numerous occasions, defendant touched M.M.’s chest and buttocks, pressed his penis against her, and penetrated her vagina with his penis. Defendant threatened to leave M.M.’s mother, or kill M.M. and her mother, if M.M. reported this conduct.
Defendant also once molested K.B., a friend of M.M.’s, when she slept over at M.M.’s house.
Defendant was charged with the continuous sexual abuse of M.M. and one count of lewd and lascivious conduct committed on K.B. He was also charged with having prior convictions for rape and sodomy. (§§ 667.61, subd. (c); 667.71; 667, subd. (b)-(i), 1203.0666, subd. (a)(5).)
At trial, M.M. testified about the abuse inflicted by defendant, describing several of these incidents with particularity. K.B. testified that when she spent the night at M.M.’s house, defendant rubbed her back and then put his fingers in her vagina.
As discussed later in this opinion, evidence of other uncharged sex offenses was also introduced. Defendant’s daughter, J.P., testified that defendant had touched her vagina on several occasions when she was in grade school. The victim of defendant’s charged prior offenses described the rape and sodomy that defendant had committed.
Defendant challenged the witnesses’ credibility, pointed out the lack of corroborating evidence, and argued that he was being framed by the victims and their mothers.
Discussion
I
Admissibility of Uncharged Sex Offenses
Citing Evidence Code section 1108, the prosecutor sought to introduce evidence relating to defendant’s commission of other sex offenses. One potential witness was defendant’s daughter, J.P., who would describe several incidents in which defendant touched her in a lewd and lascivious manner. The other witness was K.J., the adult victim in defendant’s 1991 conviction for rape and sodomy, who would describe those offenses. The trial court permitted each of these witnesses to testify.
Defendant contends that this evidence should have been excluded under Evidence Code section 352. The error, if any, was harmless.
Evidence Code section 1108 is an exception to the general prohibition on propensity evidence and permits the admission of other sex crimes, in a sex offense prosecution, for the purpose of showing a defendant’s propensity to commit such crimes. The admissibility of this evidence is subject only to the weighing of probative value and prejudicial impact under Evidence Code section 352. (See People v. Falsetta (1999) 21 Cal.4th 903, 911; People v. Britt (2002) 104 Cal.App.4th 500, 505.) “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 defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
“By subjecting evidence of uncharged sexual misconduct to the weighing process of [Evidence Code] section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. . . . This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.” (People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
In admitting evidence of defendant’s molestation of his daughter, J.P., the trial court stated that this evidence “would serve to offset any claim that he might be able to raise that the mother of [one of the victim’s in the charged case] has some axe to grind against him, and that’s why these charges were put forth, and they’re very similar in terms of age, in terms of the kind of conduct in both cases, the preoccupation with anal sex.” The court found that this evidence had “significant probative value” and had many of the features of “a modus operandi kind of evidence where he picks on young girls like this over which he has control and which [sic] he’s violating a trust relationship. [¶] And it’s not going to involve [an] undue consumption of time.” The court concluded that the probative value outweighed any prejudice, and admitted the evidence under Evidence Code section 1108.
Contrary to defendant’s claim, that ruling was well within the court’s discretion. There was nothing unduly prejudicial about J.P.’s testimony. It was unlikely to confuse or distract the jury, and unlikely to evoke an emotional bias against defendant. (See People v. Bolin (1998) 18 Cal.4th 297, 320.) Its probative value was strong because it involved similar conduct, committed under similar circumstances. The trial court did not abuse its discretion in ruling this evidence admissible under Evidence Code section 352. (See People v. Lamb (2006) 136 Cal.App.4th 575, 582.)
The proposed testimony of K.J. presents a somewhat different situation. According to the prosecutor’s offer of proof, 21-year-old K.J. was driving late one night on a highway when her car broke down. Defendant stopped and offered to take her to a telephone to get assistance. K.J. got into defendant’s truck. Defendant drove for some distance but then stopped the truck, and raped and sodomized K.J. Defendant was convicted of these charges in 1991.
The court ruled this evidence admissible, noting that although the victim was not a child, “we have similar preoccupation with anal sex with an adult victim and the added probative value of this evidence is that he was convicted of that offense. [¶] So it isn’t a matter of taking evidence to trial over which there’s great dispute about the validity of the charge, et cetera, et cetera. And it shows under [Evidence Code section] 1108 that he has propensity to carry out his predatory acts against females of all ages. [¶] So I would say that is admissible also under [Evidence Code section] 1108 and its probative value is [not] outweighed by its potential prejudicial effect under Evidence Code Section 352.”
The 1991 offense involved acts of forcible rape and sodomy committed against an adult victim who was unknown to defendant. Given the very different facts at issue in the current case, which involved the sexual abuse of young children known to defendant, the probative value of K.J.’s testimony is not particularly strong. This evidence had the potential for inflaming the jury, although it is impossible to say that a jury would have had a stronger visceral response to the facts in K.J.’s case than to the charges of sexual abuse of children at issue in the present case. The trial court concluded that the probative value of the evidence outweighed any possible prejudice and explained its decision, demonstrating that it considered the relevant factors under Evidence Code section 352.
However, even if we were to assume for purposes of argument that the court abused its discretion in admitting K.J.’s testimony, that error was harmless. Both of the victims of the charged offenses provided clear and compelling testimony describing defendant’s conduct. An expert witness explained the Child Sexual Abuse Accommodation Syndrome and the prosecutor used this testimony to explain the victims’ behavior. The jury took less than two hours to return its verdicts, rejecting defendant’s hypothesis that the victims and their mothers invented these charges because they hated defendant. Given the evidence presented at trial, defendant cannot demonstrate prejudice: there is no likelihood that a more favorable verdict would have resulted had K.J.’s testimony been excluded. Any error was therefore harmless.
II
Modification of CALCRIM No. 1191
Defendant asserts that the trial court erred in giving a modified version of Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 1191, “Evidence of Uncharged Sex Offense.” We disagree.
The court instructed the jury as follows:
“The People presented evidence that the defendant committed other sexual offenses that are not charged in this case, and that relates to the testimony by [J.P.], [defendant’s] daughter, and it relates to the testimony heard today by Ms. [K.J.].
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. [¶] A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely.”
The remainder of the standard CALCRIM No. 1191 instruction provides: “If you decide that the defendant committed the uncharged offense[s], you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit [and did commit] _______ <insert charged sex offense[s]>, as charged here. If you conclude that the defendant committed the uncharged offense[s], that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _____ <insert charged sex offense[s]>. The People must still prove each element of (the/each) charge/[and allegation] beyond a reasonable doubt.”
Rather than using this concluding paragraph, the trial court opted to instruct pursuant to the following alternative language outlined in the CALCRIM Commentary: “If you decide that the defendant committed the other uncharged sexual offenses, you may consider that evidence and weigh it together with all other evidence received during the trial to help you determine whether the defendant committed the charged crimes. [¶] Remember, however, that evidence of another uncharged sexual offense is not sufficient alone to find the defendant guilty of the charged crimes. The People must still prove each element of the charged crimes beyond a reasonable doubt.”
The trial court considered this alternative to be “much more neutral,” and neither attorney expressed any qualms about this decision. Defense counsel had raised only one unrelated objection to the instruction, arguing that the jury should be required to find the priors true beyond a reasonable doubt before being able to use this evidence for any purpose.
On appeal, defendant raises a different concern. He asserts that the omitted portion of the standard instruction “would have explained that the inference is only one to disposition or inclination toward committing sexual offenses. Rather than drawing an inference directly to guilt (he-did-it-before-so-he-probably-did-it-this-time), the inference is to negate a belief that the defendant as an ordinary person would not commit such a crime.” He also argues that the fact that “evidence ‘alone’ is not sufficient does not say what more might need to be shown, in fact the instruction can be read to mean merely that the jurors cannot convict unless the prior acts are proven beyond a reasonable doubt but that with the accusation would be sufficient proof of the current charges.” We do not agree with defendant’s strained reading of the instruction.
The alternative paragraph given by the trial court has its genesis in People v. James (2000) 81 Cal.App.4th 1343, 1357 (James). Noting that People v. Falsetta, supra, 21 Cal.4th at pages 922-924 had rejected constitutional challenges to the CALJIC instruction related to evidence of other sex offenses (CALJIC No. 2.50.01), the James court nonetheless expressed some reservations. “[T]o the degree [the instruction] still suggests that other offense evidence is relevant only to infer guilt from propensity, we believe the instruction simultaneously overstates and unduly limits the use of such evidence. The Falsetta court acknowledged that other crimes evidence may be considered for a variety of purposes ‘such as establishing defendant’s motive, intent, or identity (if those issues remain contested), or bolstering the young victim’s credibility.’ [Citation.] We believe an instruction in general terms would be more appropriate, leaving particular inferences for the argument of counsel and the jury’s common sense.” (James, supra, 81 Cal.App.4th at p. 1357, fn. 8.)
This is precisely the modification offered by the CALCRIM Commentary and adopted by the trial court here. Nothing in the given instruction reduced the prosecutor’s burden of proof or misled the jury about the proper use of other crimes evidence. It clearly told the jury that it could consider the other sexual offenses to help determine whether defendant committed the charged offenses, but cautioned that this propensity evidence was not sufficient in and of itself to find defendant guilty. It reminded the jury that the People had to establish each element of the charged offenses beyond a reasonable doubt.
Defendant’s claims to the contrary are meritless. To the extent that his arguments suggest that Evidence Code section 1108 is unconstitutional and permits an improper use of other crimes evidence, his claims are unavailing. Section 1108 passes constitutional muster. (People v. Falsetta, supra, 21 Cal.4th at pp. 915-922; People v. Fitch, supra, 55 Cal.App.4th at pp. 184-185.)
The court properly instructed the jury. There was no error.
III
Determining Identity in Prior Convictions
Citing cases such as Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], defendant contends that the jury, rather than the trial court, should have determined whether he was the person named in the charged prior convictions. As defendant also recognizes, case law provides otherwise.
The statutory provisions relating to prior convictions unequivocally demonstrate that a defendant is not entitled to a jury determination on the question of identity. Section 1025, subdivision (b) provides that “the question of whether or not the defendant has suffered the [charged] prior conviction shall be tried by the jury . . . or by the court if a jury is waived.” However, notwithstanding this provision, “the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.” (§ 1025, subd. (c).)
The California Supreme Court has held that the right to a jury trial of prior conviction allegations derives from Penal Code provisions, not the state or federal Constitution. (People v. Epps (2001) 25 Cal.4th 19, 23.) Consequently, courts have rejected the claim that the right to jury trial, as developed in Apprendi, requires that a jury rather than the court determine if the defendant is the person who suffered the prior conviction. A defendant “has no right to jury trial on whether he is the person whose name appears on the documents admitted to establish the convictions.” (People v. Garcia (2003) 107 Cal.App.4th 1159, 1165; People v. Belmares (2003) 106 Cal.App.4th 19, 27-28, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228; see also People v. Epps, supra, 25 Cal.4th at pp. 26-27; People v. Kelli (1999) 21 Cal.4th 452, 458.)
The jury has a limited role in determining the validity of a charged prior conviction. “Where the trial court finds that the defendant is the person who is named in the conviction records, it may so instruct the jury. [Citation.] The jury then ‘“determine[s] whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.”’ [Citation.]” (People v. Garcia, supra, 107 Cal.App.4th at p. 1165, italics omitted.)
The court followed this procedure in submitting the charged prior convictions to the jury. There was no error.
IV
AIDS Education Fine
In sentencing defendant, the trial court imposed a $70 AIDS education fine. Defendant contends, and the People concede, that the crimes for which defendant was convicted are not among those for which this fine may be imposed. (See § 1463.23; People v. Thomas (1996) 42 Cal.App.4th 798, 802-803.) We agree, and strike the unauthorized fine.
Disposition
The AIDS education fine in the amount of $70 is stricken. In all other respects, the judgment is affirmed.
We concur: MORRISON, Acting P.J., BUTZ, J.