Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. 2002030803 James Cloninger, Judge
Jolene Larimore, 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, Senior Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Ezequiel Perez appeals from the judgment after a jury convicted him of continuous sexual abuse of a minor (Pen. Code, § 288.5, subd. (a)) with special findings that he suffered a prior conviction for continuous sexual abuse of his daughter. The trial court found the prior conviction was a serious felony conviction within the meaning of section 667, subdivision (a) and the Three Strikes Law (Pen. Code, § 667, subd. (e)(1)), and sentenced appellant to 55 years to life. We affirm.
Facts and Procedural History
On August 19, 2002, 13 year old F. reported that his father, appellant, molested him 30 to 40 times. The sexual abuse included masturbation, oral copulation, and attempted sodomy.
On August 22, 2002, the Oxnard Police had F. made a cool call to appellant. Appellant told F. that he did not mean any harm and "you just better keep it to yourself."
On August 30, 2002, F. made a second call, indicating that the school counselor wanted to talk to him. Appellant told F. to say that it never happened. Appellant blamed F. for breaking up his marriage and said what they did was "illegal." He warned if school authorities found out, "they'll go and tell the cops and the cops will . . . put me in jail . . . . [f]or another five or six years. And your mommy won't get no child support and nobody's gonna get nothing."
At trial the People introduced evidence that appellant was convicted in 1995 and sentenced to state prison for sexually abusing F.'s sister, Ada P. Ada was molested at home between the ages of 9 and 13. She stated that the sexual abuse included masturbation, touching of the genitals, digital penetration of her vagina, and repeated acts of sexual intercourse.
Appellant's niece, Leticia D., testified that appellant molested her in 1985. Leticia did not report the molestation until 1995. She recalled two incidents in which appellant put her hand on his penis and had her stroke it.
Prior Sexual Misconduct
Appellant argues that the trial court erred in admitting the prior sexual misconduct to show propensity to commit the charged offense. (Evid. Code, § 1108.) We review for abuse of discretion. (People v. Wesson (2007) 138 Cal.App.4th 959, 969.) In People v. Falsetta (1999) 21 Cal.4th 903, our Supreme Court outlined the factors to be considered by a trial court in determining whether to admit evidence of other sex offenses. These factors include the "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. . . " (Id., at p. 917.)
Before trial, the prosecution made an Evidence Code section 1108 motion to introduce the prior sexual misconduct. Appellant objected on the ground that some of Ada's proffered testimony included offenses not reported in 1995. When appellant was convicted of sexually abusing Ada in 1995, Ada. did not tell the police about the sexual intercourse.
Appellant objected to the niece's proffered testimony that she was molested twice. When Leticia reported the molestation in 1995, she told the police about only one incident.
Appellant argued that Evidence Code section 352 vested the trial court with the discretion "to limit the 1108 witnesses to what they said happened 11 years ago, as opposed to what they now believe happened." Appellant claimed the sexual misconduct was remote in time, was prejudicial, would necessitate undue consumption of time, and would confuse and mislead the jury.
The trial court overruled the objections on the ground that the "evidence, even though it's old, it displays an ongoing lasting fixed feature of the defendant's personality, which is the purpose for this evidence admission to . . . show the jurors he's the sort of person who does that kind of thing. [¶] I note that the ages of the children at the time that they alleged this activity occurred appear to be quite similar, which also I think lends credence to my conclusion that even though the evidence is somewhat old with respect to Leticia, it is probative in that it just seems to disclose a feature of Mr. Perez's personality. [¶] So it looks like the evidence shows that what we have here is a man with a tendency to be sexually interested in children of about that age. And the only oddity here is that we have two female alleged victims. And the latest is the son, an alleged male victim. So I don't think there's any undue prejudice that flows to Mr. Perez from this. [¶] And I don't think that the information is at all stale, because of the defendant's age when the information came to light and the children's ages when they made the reports. I think that's precisely the kind of evidence that the legislature intended for us to admit under section 1108."
Appellant argues that the prior sexual misconduct was too remote in time. We disagree. "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 284 [30 year old prior sexual offenses not remote]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [23-year-old rape conviction not remote].) The gap in time was due to the prison sentence, appellant's divorce and remarriage, and his estrangement from family members
The trial court reasonably found that the prior sexual misconduct was similar to F.'s molestation and highly probative. The sexual abuse involved family members who were about the same age (preteens) when appellant molested them. Each victim was loath to report the molestations and did not do so immediately. "Moreover, appellant took advantage of the fact that each victim was staying in his home when the molestations took place. . . . In sum, the substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses. [Citation.]" (People v. Branch, supra, 91 Cal.App.4th at p. 285.)
The trial court did not err in concluding that the probative value of the uncharged sexual offenses substantially outweighed the possibility of prejudice. (Evid. Code, § 352; People v. Falsetta, supra, 21 Cal.4th at p. 907.) In 1995, Ada was too embarrassed to tell the police about the repeated acts of sexual intercourse. After appellant was sentenced to state prison, Ada's mother divorced appellant. Ada was ashamed and moved out, enlisting in the Navy.
Leticia, who was molested twice, reacted the same way. Leticia was embarrassed and thought she would get into trouble if anyone found out. Appellant told her to keep it a secret.
The trial court found that the uncharged sexual offenses would not confuse or mislead the jury and that the jury was entitled to consider the prior molestations as propensity evidence. Appellant was afforded the opportunity to cross-examine Ada and Leticia about the late disclosure. He cites no authority that the trial court was required to sanitize the prior bad acts evidence or limit it to what was reported in 1995. As with other forms of relevant evidence subject to any exclusionary principle, the presumption is in favor of admission. (People v. Soto (1998) 64 Cal.App.4th 966, 984.) We will reverse only if the trial court's ruling was "arbitrary, whimsical, or capricious as a matter of law. [Citation.]" (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)
Appellant complains that the prosecutor referred to appellant as a convicted child molester in opening statement and at the conclusion of the trial. The comments were made after the trial court ruled on Evidence Code section 1108 motion and after appellant indicated that he would testify about the 1995 conviction. The jurors also heard about the prior conviction during jury selection. If appellant believed the prosecutor's comments were improper, he was required to object and request a curative admonition. (People v. Ochoa (1998) 19 Cal.4th 353, 431.) Having waived the issue, he may not resurrect a claim of prosecutorial misconduct based on the theory that it is part of the prejudice flowing from the Evidence Code section 1108 ruling.
The following colloquy occurred before opening statement:
Defense counsel, in opening statement, stated: "[Y]ou've heard both generally during jury selection and specifically just now that he's done it before. You've been told his daughter Ada was molested by him over a four-year period. And you've heard his niece Leticia says he touched her on one or two occasions back when she was about sever or eight years old." (Emphasis added.)
Appellant further speculates that the jury may have convicted him to punish him for uncharged crimes against Ada and Leticia. The jury was instructed that it must not be influenced by sympathy or bias (CALCRIM 200) and that the prior sexual misconduct evidence was admitted for a limited purpose (CALCRIM 303 & 1191). We presume that the jury understood and followed the instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.) Had the propensity evidence been excluded, it is not reasonably probable that appellant would have obtained a more favorable result. (People v. Welch (1999) 20 Cal.4th 701, 750.)
The CALCRIM 1191 instruction stated in pertinent part: "If you decide that the defendant committed the uncharged offense, 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, the crime of continuous sexual abuse of a child in violation of Penal Code section 288.5(a), F[.], as charged here. If you conclude that the defendant committed the uncharged offense, 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 the crime of the continuous sexual abuse of a child in violation of Penal Code section 288.5(a). . . . The People must still prove each element of the charge beyond a reasonable doubt."
Harmless Error
Assuming, arguendo, the trial court erred in admitting the Evidence Code section 1108 propensity evidence, the alleged error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The other evidence was overwhelming and included recorded phone calls in which appellant admitted molesting F. Appellant told F. to stay quiet and warned if the police found out, appellant would go to jail for another six years. Testimony concerning appellant's sexual abuse of other family members was no more inflammatory than the charged offense which included acts of attempted sodomy, oral copulation, and masturbation.
Appellant's remaining arguments have been considered and merit no further discussion.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.
"MR. ASHER [defense counsel]: "So in light of the Court's [section 1108] ruling the defendant retracts his decision to bifurcate. And the jury I suspect will now be told he suffered a prior conviction. And that part of their chore is to receive documents and ultimately make some decisions about that.
"THE COURT: Well, you folks can tell them that in your opening statements if you like."