Opinion
H043165
12-06-2017
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN RAMOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1354609)
A jury convicted Benjamin Ramos in February 2015 of committing a lewd act on a child under the age of 14. S. was eight years old at the time of the incident and a friend of Ramos's granddaughter. The trial court permitted the prosecution to introduce evidence of other sexual offenses by Ramos under Evidence Code section 1108, including four convictions in 2001 for lewd and lascivious conduct against M. and X., and an uncharged act against Mir. from 52 years earlier. The court allowed the testimony of M., X., and Mir. to show that Ramos had a propensity to molest young girls, but limited Mir.'s testimony to the prosecution's rebuttal case and sanitized it to exclude certain inflammatory details.
We refer to the witnesses in this case by first initial only, or when necessary to avoid confusion, by the first three letters of the first name. (See Cal. Rules of Court, rule 8.90.)
Unspecified statutory references are to the Evidence Code.
On appeal, Ramos claims the trial court erred by admitting evidence of the uncharged act against Mir. because the alleged act was remote, dissimilar, inflammatory, and had gone unpunished. He argues that the failure to exclude the rebuttal evidence constituted an abuse of discretion so egregious that it violated his constitutional right to a fair trial by an impartial jury. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. CHARGES
The Santa Clara County District Attorney charged Ramos by information filed in April 2014 with a single count of lewd conduct with a child under age 14 (Pen. Code, § 288, subd. (a).) The information alleged that Ramos had a prior conviction for an offense specified in Penal Code section 667.61, subdivision (c), within the meaning of Penal Code section 667.61, subdivisions (a) and (d) (One Strike Law).
Ramos pleaded not guilty and denied the allegation. He waived his right to a jury trial on his alleged prior conviction.
B. IN LIMINE PROCEEDINGS
A two-week jury trial took place in February 2015. Prior to and during the trial, the court held several hearings with counsel, outside the presence of the jury, to discuss the parties' in limine motions concerning in relevant part the admission of Ramos's prior sexual offenses as evidence of both propensity under section 1108 and intent or motive under section 1101, subdivision (b).
Section 1108 provides in 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." (§ 1108, subd. (a).)
Section 1101 generally prohibits the introduction of character evidence when offered to prove conduct on a particular occasion. (§ 1101, subd. (a).) However, evidence that a person committed a crime, civil wrong, or other act may be admitted "when relevant to prove some fact (such as motive, opportunity, intent, . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b).)
The prosecution sought to introduce evidence of prior sexual offenses committed by Ramos against M., X., Mir., and two other girls, L., and Y. The incidents involving M. and X. occurred between 1997 and 1999 and resulted in Ramos pleading guilty in 2001 to four counts of lewd and lascivious conduct on a child under 14. Y. was listed as a witness for the defense in the prosecution for the charged offense. She told the police in 2011 that Ramos would kiss her on the forehead and cheek when she visited his granddaughter, making her feel uncomfortable and like she wanted to take a shower. The incidents involving L. and Mir. were significantly older. L. claimed that in 1966 or 1967, Ramos lay behind her when she was sleeping and touched her inappropriately, though she could not specify how he touched her. Mir. would testify that in 1962 or 1963, when she was 4 or 5, Ramos rubbed his penis against her vagina, partially penetrated her vagina, and ejaculated on her.
Ramos moved to exclude the prior incidents under section 352, claiming they were too remote and, particularly as to Mir., L., and Y., dissimilar to the charged offense to be probative. He argued that the alleged offense against Mir. was highly inflammatory in that it constituted forcible rape of a four- or five-year-old, and would be almost impossible to defend himself against, since the allegations pertained to events from over 50 years before and were never charged. He also argued that the prior incidents involving L. and Y. were too vague to amount to a statutorily-enumerated sex offense and, accordingly, did not qualify for admission under section 1108.
Section 352 authorizes the court, in its discretion, to 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."
The court ruled that it would allow the prosecution to call M. and X. as witnesses in the case-in-chief and would admit the related convictions. It found the evidence of L.'s allegations too vague to admit in the prosecution's case-in-chief, since L. did not remember how Ramos had touched her, but deferred a final ruling subject to a possible section 402 evidentiary hearing. It made a similar finding regarding Y.'s allegations of uncomfortable kissing by Ramos. After further proceedings, including a section 402 hearing in which Y. testified about her interactions with Ramos, the court excluded L.'s and Y.'s proffered testimony under section 1108.
In contrast with its initial findings as to L. and Y., the court deemed the uncharged molestation of Mir. "unambiguous" and highly probative of Ramos's disposition to commit the sex offense charged, "given what's happened after." The court directed the prosecution not to raise Mir.'s allegations in its case-in-chief but indicated that it was inclined to admit the testimony, especially if the trial raised substantial credibility issues for the other witnesses. Defense counsel questioned the additional probative value of Mir.'s testimony, given the court's ruling to allow the testimony of M. and X., by which "the People already have their necessary dispositional evidence to essentially countervail my argument that the complaining witness is lying for whatever reason."
The court revisited the question of Mir.'s testimony several times during the trial. The court's ultimate decision to admit the evidence in the prosecution's rebuttal case (sanitized to remove any reference to rape, penetration, or ejaculation) will be discussed further in the Discussion section, post. The court also rejected the defense's objection to admitting the prior offense evidence to prove motive and ruled the evidence was admissible under both section 1108 and section 1101, subdivision (b). The jury was instructed to consider the prior sexual offense evidence for both purposes.
C. EVIDENCE ADDUCED AT JURY TRIAL
1. Charged Lewd Act on S. in 2011
S. was almost 12 years old at the time of trial. She testified that when she was nine years old, in third or fourth grade, Ramos touched her improperly. She was playing with her friends Mag. and V. in Mag.'s backyard. The three girls were neighbors along with a fourth friend, Y. Ramos is Mag.'s grandfather. Ramos was in the backyard while the girls were playing. Mag.'s father was in the house.
Mag. and V. went inside to get a snack. Ramos began talking to S. and asked if she would like to help him find something in the backyard shed. S. had been in the shed several times before while playing hide-and-seek. It was about half full of things like toys, tools, and baby items. S. entered the shed with Ramos. The door stayed partially open.
Ramos asked S. to look for a light bulb or a tool. When she found it, he thanked her and hugged her. He then turned her around, touched her down her front, and rubbed her vagina over her clothes for about 20 seconds. He asked her, " 'Does it feel good?' " He stopped when V. called out a few times for S. He said, " 'Don't tell nobody?' " S. looked over and could see V. looking for her. S. ran to V. and told her that they should leave.
S. told V. what happened on the way home. She did not tell her mom at that time. Later, the girls attended an after-school activity that prompted S. to report the incident to the teacher.
S. had testified at the preliminary examination that she went home and told her mother first. Her mother told her not to return to Mag.'s house.
V. was 13 at the time of trial. The day that she saw Mag.'s grandpa (Ramos) touch S., she, Mag., and S. were playing in the backyard. She went inside with Mag. to get a snack but came back out. V. did not see anybody in the backyard so she called for S. and started to look for her. She heard something inside the shed and moved closer to look in the window. She had to move a rock under the window and stand on her tiptoes to see inside. She saw Mag.'s grandpa hug S., then turn her around and put his arms around her towards her "female part." V. was shocked and scared; she ran but then stopped and began yelling S.'s name. She could see the door of the shed, which was halfway open, and S. came running out.
V. had testified at the preliminary examination that she first saw S.'s blond hair through the door of the shed, and S. appeared to be on her hands and knees looking for something. V. then went to peek through the window.
Y. was 13 at the time of trial. She lived next door to the Ramos family and was friends with Mag. and her sisters, as well as with S. and V. She used to play at Mag.'s house and had played inside the shed in the backyard four or five times. It was full of boxes and had only a little path in for the door to open and close. At some point, Y.'s mother told her not to go there anymore because Mag.'s grandfather was on the computer for things he had done to girls in the past. Y. told S. that she could not play at Mag.'s house anymore, so S. should not go there either. Her best memory is that she did not tell S. why she should not go there; though she might have told S. that Ramos was in the computer.
Y.'s testimony on direct, cross, and redirect was inconsistent as to whether she told S. the reason that she could no longer play at Mag.'s house.
Investigator Margarita Ramirez took photographs of the backyard shed in October 2013. The shed was so full the door could barely open. There was no way to see inside other than through the door and window. Ramirez did not know anything about how the shed looked in 2011.
A. is Mag.'s oldest sister. She lived at the house with her father, her stepmother, and her sisters. Her grandfather, Ramos, lived with them for about two years from 2009 through 2011. The backyard shed was built during those years and filled with items from the house; people could not fit inside the shed. When Mag.'s friends would come over to play, they played in the front yard. S. came to play once in a while. About a year or two before the police got involved, S. got in trouble with A.'s dad, who told S. to leave their house. S. was not allowed inside the house after that but would stay out front or in the driveway.
2. Uncharged Lewd Acts on M. and X. between 1997 to 1999
M. was 27 at the time of trial. Ramos is M.'s "uncle" or grandmother's brother. M. testified that Ramos touched her improperly when she was 10 and 12 years old. The first time, M. had gotten out of the shower at her grandmother's house and went to the bedroom wrapped in a towel. Ramos knocked on the door. She put on her clothes (a tank top and skort (skirt-short combined)) and stepped from the bedroom to the laundry area, where Ramos was. She was expecting to greet him. But he pulled her close, with his hands underneath her bottom, and told her to shush. His hands were rubbing her buttocks and vaginal area over her underwear. She pushed him back and said no, and he moved his hands to her chest area and touched her over her bra but under her tank top. When she told him to stop, he said " 'You have to be quiet.' " The touching and shushing stopped when her grandmother called for Ramos.
The second time, Ramos entered the room as M. was putting on makeup. He came closer to say hi and hug. She held back, and he began kissing her on the face and lips and tried to put his tongue in her mouth. He touched her chest over her sweater. He stopped because her grandparents were outside.
X. was 24 at the time of trial. Ramos is X.'s grandmother's brother. X. testified about two incidents in which Ramos touched her improperly. The first time it happened, she was eight or nine years old and in her grandmother's living room watching television. Ramos entered and called X. to come to him; she went toward him and he came very close, with her side to his front. She was wearing a dress with nylons. He reached under her dress and rubbed her vagina over the nylons for what felt like a long time. He said, " 'You don't like it?' " and " 'Don't say anything.' "
The second incident happened in her grandmother's bedroom when X. was about nine. X. was walking past the door when Ramos called her to come to him. Her side was pressed against his stomach and he touched her like the first time, rubbing her vagina over her underwear but under her shorts. There were other incidents that X. remembered, less vividly, in which Ramos touched her vaginal area over her underwear. X. eventually told her grandmother and stepmother about the touching. When they did not believe her, she later told her cousin, M.
The defense did not cross-examine M. or X.
The trial court admitted into evidence court records showing that Ramos was convicted following a guilty plea in July 2001 of four counts of violating Penal Code section 288, subdivision (a), felonies.
3. Uncharged Lewd Act on Mir. in 1962 or 1963
Mir. was 57 at the time of trial. When she was a child, Mir. knew Ramos as her "uncle" but believes he was a family friend. When Mir. was four or five years old, she visited her father at her father's apartment. Ramos led her by the hand into the bathroom. She sat on the toilet seat, and he lifted her so that she was standing on the toilet seat. The bottom half of her body was unclothed. He pulled out his penis and rubbed his penis against her vagina for 20 or 30 seconds. When it was done, he told her not to tell anybody and gave her a quarter to buy candy. That was the only time that Ramos touched her inappropriately.
Defense counsel did not cross-examine Mir.
4. Child Sexual Abuse Accommodation Syndrome
Miriam Wolf is a licensed clinical social worker. She has about 15 years of experience as a specialist interviewing children and testified as an expert in the area of child sexual abuse accommodation syndrome. Children who have suffered sexual abuse often exhibit certain patterns of behavior that relate to how and when they disclose abuse. Those children who disclose in childhood may do so after long delays. It would not be uncommon for a child to provide conflicted or unconvincing disclosure, including inconsistent statements about an incident, especially its peripheral aspects. Inconsistency also can be indicative of not being truthful. False reports of abuse more typically arise when the party has some kind of secondary gain from making the allegation.
D. JURY VERDICT AND SENTENCING
On February 19, 2015, the jury found Ramos guilty of a lewd or lascivious act on a child under 14, as charged. The court held a bench trial the next day on the prior convictions and found, beyond a reasonable doubt, that Ramos was previously convicted of a specified offense, namely four violations of Penal Code section 288, subdivision (a).
On January 8, 2016, the court denied defense motions for a new trial and for a modified sentence on Eighth Amendment grounds of cruel and unusual punishment. It imposed the indicated sentence of 25 years to life and awarded credits for time served. Ramos timely appealed from the judgment of conviction.
DISCUSSION
Ramos challenges the admission of Mir.'s testimony under both section 1108—to show propensity to commit the sexual offense charged, and section 1101, subdivision (b)—to show sexual motive based on his attraction to children. He claims the erroneous admission of this evidence was so fundamentally unfair that it violated his constitutional right to a fair trial and requires reversal of the judgment of conviction.
A. LEGAL PRINCIPLES AND STANDARD OF REVIEW
The issues on appeal stem from two statutory exceptions to the prohibition against admitting character evidence to prove criminal disposition or propensity. (See § 1101, subd. (a) ["evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion"].)
Section 1108 creates a narrow exception applicable in sexual offense prosecutions. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); People v. Jandres (2014) 226 Cal.App.4th 340, 352-353 (Jandres).) It "was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, supra, at p. 911.) Subject to the court's discretion to exclude the evidence under section 352, the statute "permits evidence that the defendant committed other sexual offenses to prove his propensity to commit the charged sexual offenses." (People v. Cottone (2013) 57 Cal.4th 269, 281 (Cottone); see § 1108, subd. (a).)
Section 1101, subdivision (b), provides that evidence of a defendant's other crimes or bad acts may be admitted to prove some material fact at issue, like motive or intent, but not to show a predisposition to criminality or propensity to commit the charged offense. (§ 1101, subd. (b); People v. Cage (2015) 62 Cal.4th 256, 273; People v. Jones (2013) 57 Cal.4th 899, 930.)
Evidence made admissible by either statutory exception remains subject to exclusion under section 352 if its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; see People v. Davis (2009) 46 Cal.4th 539, 602 (Davis) [admission of other crimes evidence under § 1101, subd. (b) must not contravene other policies limiting admission, such as § 352]).) The prejudice that section 352 seeks to avoid is not that which " ' "naturally flows from relevant, highly probative evidence." ' " (People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris).) Rather, prejudice in this context evokes " ' "an emotional bias" ' " or " ' " ' "prejudging" a person or cause on the basis of extraneous factors.' " ' " (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1115 (Nguyen).)
We review the trial court's rulings to admit evidence under these statutes for abuse of discretion. (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova) [applying abuse of discretion standard to evidence admitted under § 1108]; Davis, supra, 46 Cal.4th at p. 602 [applying abuse of discretion standard to evidence admitted under § 1101, subd. (b)].) Because the court in this case admitted the testimony under both sections, we will find error only if we determine the evidence was inadmissible under both. (People v. Branch (2001) 91 Cal.App.4th 274, 280-281 (Branch).)
B. ADMISSIBILITY OF THE UNCHARGED ACT AGAINST MIR. UNDER SECTION 1108
Ramos does not dispute that the uncharged conduct against Mir. was an admissible sexual offense under section 1108. (See Cordova, supra, 62 Cal.4th at p. 132 [evidence of uncharged sex offense "is presumed admissible" under § 1108 "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"].) Ramos instead contends that the trial court erred when it failed to exclude the evidence as unduly prejudicial and minimally probative. Accordingly, we must decide whether the trial court abused its discretion by failing to exclude Mir.'s testimony pursuant to section 352.
1. Analysis of Probative and Prejudicial Factors Under Section 352
Uncharged sexual offense conduct is admissible pursuant to section 1108 if, under section 352, its probative value is not "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.) The weighing process under section 352 safeguards the constitutional validity of section 1108. (People v. Villatoro (2012) 54 Cal.4th 1152, 1166; Falsetta, supra, 21 Cal.4th at p. 917 ["trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge"].) "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." (Falsetta, supra, at p. 917.)
The primary factors to be considered in the section 352 analysis thus 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 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." (Nguyen, supra, 184 Cal.App.4th at p. 1117.) The trial court balances the probative value established by the first factor against prejudice as measured by the second through fifth factors. (Ibid.; Branch, supra, 91 Cal.App.4th at p. 282.)
We will not disturb the trial court's ruling under section 352 " 'except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Here, the trial court found that Mir.'s proffered testimony had "special probative value" because Mir. was independent from the other witnesses, who all shared common relationships and were tied to what could be "loosely called" the defense's conspiracy theory. The court observed "a great deal of similarity" between the two incidents, noting that although Mir. was four or five, and S. was eight or nine, S. was "of somewhat unusual small stature." And while the skin-to-skin contact and ejaculation in the uncharged act was more inflammatory, the court found that fact did not diminish the relevance of the prior conduct to Ramos's later disposition. On the issue of remoteness, the court indicated that it could not conclude the prior offense was "so long ago" or "so dissimilar" as to be not probative of Ramos's disposition at the time of the charged offense. On this point, the court distinguished Harris, supra, 60 Cal.App.4th at page 741, in which the Court of Appeal deemed the admission of a "23-year-old act of unexplained sexual violence" to be an abuse of discretion under section 1108.
We discuss the Harris decision in further detail below. --------
Defense counsel argued, however, that because Ramos had not sought to impeach the testimony of M. and X. or contest Ramos's related convictions, admitting the remote and inflammatory incident alleged by Mir. would be "cumulative" and "overkill." Counsel argued that Mir.'s testimony was not relevant to bolster S.'s credibility and would lead the jury to improperly infer that Ramos had molested other girls over the past 50 years and gone unpunished, heightening the risk of prejudice with no corresponding probative value.
The court ultimately ruled the uncharged sexual offense against Mir. was admissible. The court found that prejudice from Mir.'s testimony was not the sort that "tends to uniquely evoke an emotional bias without having some corresponding significant probative effect on the issues in this case." Although the testimony described "more substantial sexual conduct" than the charged offense, the conduct was not brutal or violent, and the court directed the parties to refrain from referring to the incident as rape of a child or mentioning penetration or ejaculation. The court further explained that although Ramos did not contest his prior convictions for the molestation of M. and X., Mir.'s testimony was probative given the defense's effort to undermine S.'s credibility and paint Ramos as S.'s target. The court concluded that the evidence would not consume much time and its remoteness was balanced by its probative value as pertained to Ramos's disposition toward young girls, particularly because Ramos had not been law abiding in the years since his misconduct with Mir. It explained, "while I recognize the prejudicial aspects of this testimony, I do find that the probative value of it substantially outweighs any prejudicial effect and have considered those factors."
2. The Trial Court Did Not Abuse its Discretion by Failing to Exclude Mir.'s Testimony Under Section 352
Ramos contends that the admission of sexual misconduct from 1962 or 1963 exceeded "any reasonable threshold test of remoteness" (People v. Burns (1987) 189 Cal.App.3d 734, 738), even when viewed in relation to his subsequent offenses against M. and X. beginning around 1997. Ramos also claims that dissimilarities between the uncharged act and the charged offense amplify the remoteness of the earlier conduct, since Mir.'s molestation involved skin-to-skin genital contact that was not repeated in the charged crime or in the offenses against M. and X. He argues that the uncharged conduct was more inflammatory and increased the danger that the jury would seek to punish Ramos for the uncharged act. Finally, he contends the evidence was cumulative of the testimony of M. and X.
There is no question that the admission of 52-year-old misconduct presses the application of section 1108 to exceptionally remote territory. (See, e.g., Harris, supra, 60 Cal.App.4th at p. 739 ["Although there is no bright-line rule, 23 years is a long time."]; People v. Burns, supra, 189 Cal.App.3d at p. 738 [use of 20-year-old conviction for impeachment "meets any reasonable threshold test of remoteness"].)
The temporal gap between offenses, however, is not alone determinative in a section 352 analysis. "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible." (Branch, supra, 91 Cal.App.4th at p. 284; accord Cordova, supra, 62 Cal.4th at p. 133 ["[n]either . . . section 352 nor . . . section 1108 contains rigid requirements"].) Rather, "[r]emoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses.' " (Branch, supra, at p. 285.) Factors relevant to this inquiry include the similarity of the offenses and whether the defendant re-offended in the intervening period. (Harris, supra, 60 Cal.App.4th at p. 739; Branch, supra, at p. 285.) " 'Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.' " (People v. Villatoro, supra, 54 Cal.4th at p. 1163.)
Our Supreme Court reiterated these principles in Cordova. The defendant was convicted of first degree murder with special circumstance allegations of murder while committing rape and a lewd and lascivious act on a child under the age of 14. (Cordova, supra, 62 Cal.4th at p. 109.) The defendant contended in pertinent part that uncharged sex offenses admitted at trial under section 1108 were too far removed in time (13 and 18 years later) and too dissimilar from the charged crime to be admissible. (Cordova, supra, at p. 133.) The high court explained that while these were relevant factors for the trial court to consider in exercising its discretion, neither "the time gap alone" nor "dissimilarity alone" compelled exclusion of the evidence. (Ibid.) The court noted the defendant did not point to any evidence that suggested his character had changed over the relevant period. (Ibid.) Although the other offenses "contained none of the violence of the charged crime" (ibid.), sufficient similarities "permitted the inference that defendant had a propensity to commit such sex offenses," consistent with the primary purpose behind section 1108. (Cordova, supra, at p. 134 [charged and uncharged sex offenses were all "committed late at night inside a home against young children of similar age"].)
Here, the trial court acknowledged the uncharged act was remote but found the similarities of Ramos "having contact with [each] girl's vaginal area for the purpose of his sexual gratification" counterbalanced the remoteness. We find the court's assessment was reasonable given the young age of the girls, S.'s remarkably "small stature" that accentuated the similarity between her at the age of eight and Mir. at the age of four or five, and the nature of the offense, which consisted of rubbing the vagina (skin-to-skin with the penis or over underwear with the hand) for 20 or 30 seconds, followed by an admonition not to tell. These facts are comparable to those in Branch, in which the court upheld a determination to admit prior sexual offense evidence, and stand in contrast with those in Harris and in this court's decision in Jandres.
In Branch, the gap between the uncharged prior acts and charged offenses was "a substantial one" of 30 years. (Branch, supra, 91 Cal.App.4th at p. 284.) Both the prior offenses and charged offenses involved 12-year-old relatives of the defendant who were staying in his home when the molestations occurred, after which the defendant lied about the girl's behavior. (Id. at p. 285.) The court found that "the substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses." (Ibid.; accord People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [evidence of the defendant's molestation of a victim about 20 years prior to charged offenses was "not too remote" because the similarities "balanced out the remoteness"].)
Harris is distinguishable because the court found not only that the uncharged act was remote, but that extreme differences between the prior and charged offenses negated any probative value. (Harris, supra, 60 Cal.App.4th at pp. 741-742.) The defendant was a mental health nurse who took sexual advantage of two female patients at the treatment center where he worked; the charged offenses involved breaches of trust more than violence. (Id. at pp. 730-732, 738.) By contrast, the offense admitted under section 1108 described a vicious sexual assault 23 years earlier on a woman in an apartment complex. (Harris, supra, at pp. 733-734.) The appellate court found the "23-year-old act of inexplicable sexual violence" (id. at p. 740) was not probative of the defendant's predisposition to commit the charged " 'breach of trust' sex crimes" (id. at p. 741), in part because the charged offenses were "of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury." (Id. at p. 738.) The court also found that remoteness weighed strongly in favor of exclusion, noting that "23 years is a long time" and the defendant had no other convictions since then that were relevant to a predisposition to commit the charged sexual offense. (Id. at p. 739.)
In Jandres, like in Harris, the uncharged act evidence was dissimilar from the charged offense, leading this court to conclude that its prejudicial effect exceeded its comparatively low probative value. (Jandres, supra, 226 Cal.App.4th at p. 357.) The charged offenses included forcible rape and kidnapping to commit rape. (Id. at p. 343.) The uncharged act occurred during an attempted burglary, when the defendant lifted a girl off the couch and carried her about eight feet before dropping her; she testified that he shoved his finger into her mouth for 15 or 20 seconds. (Id. at p. 349.) We found that "[g]iven the many differences between the two offenses—including the circumstances (daytime attempted burglary in one case, possible stalking and attack at night in the other); the ages of the victims (11 and 18); and the nature of the conduct (inappropriate touching of the mouth in one case, rape in the other)," evidence that the defendant exhibited sexual interest in an 11-year-old girl by fingering her mouth did not support an inference that he was predisposed to rape an 18-year-old woman. (Id. at p. 356.)
As compared to Jandres and Harris, we find the facts of the uncharged act not so dissimilar from the charged offense as to undercut its probative value in this case. The pertinent inquiry is whether " ' "the evidence tends logically and by reasonable inference to prove the issue upon which it is offered . . . ." ' " (Jandres, supra, 226 Cal.App.4th at p. 355; Harris, supra, 60 Cal.App.4th at pp. 739-740.) Each sexual offense, starting with the uncharged act against Mir. and including the molestation of M., X., and S., had enough similar qualities to be probative of the next. What is more, like in Cordova, the remoteness of the uncharged act is not determinative because there was no evidence to suggest that Ramos's predisposition toward young girls had changed over the 50 years; to the contrary, more than 30 years after the uncharged act against Mir., Ramos was convicted of molesting M. and X. (Cordova, supra, 62 Cal.4th at p. 133.) Mir.'s testimony had " 'some tendency in reason to show' " that Ramos was " 'predisposed to engage in conduct of the type charged.' " (Jandres, supra, at p. 355.)
In addition, the trial court identified S.'s credibility as "the main issue in this case" due to conflicting evidence on such issues as whether the backyard shack was accessible and whether S. knew that Ramos was " 'in the computer' " for things he had done in the past. To the extent the defense sought to impeach S.'s testimony at several points and presented "motive testimony" suggesting that S. might have falsely accused Ramos, we cannot conclude that the court abused its discretion in determining Mir.'s independent testimony to be especially probative in terms of dispositional evidence. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt) ["The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense."].)
Nor has Ramos demonstrated error in the trial court's analysis of prejudice. The trial court properly considered "the availability of less prejudicial alternatives" to the outright admission of Mir.'s testimony by "excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.) Ramos does not contend that the court inappropriately sanitized the evidence. While Mir.'s testimony was somewhat more inflammatory than the evidence of the charged offense against S., it was neither extreme nor misleading. (Cf. Harris, supra, 60 Cal.App.4th at p. 738 [evidence was "inflammatory in the extreme" and provided the jury an "incomplete and distorted description of" the violent sexual attack, which likely "caused a great deal of speculation as to the true nature of the crime"]; see also People v. Christensen (2014) 229 Cal.App.4th 781, 799 [explaining the prior offense evidence of a young boy's molestation was "more severe" than the charged offenses, but "not so much so that it should be excluded without a consideration of other factors"].)
Ramos's stronger argument is that the prior offense evidence was cumulative and especially damaging because the uncharged misconduct against Mir. did not result in a criminal conviction. The Supreme Court has recognized that the risk of confusion of issues under section 352 increases in the absence of a conviction for the uncharged offense, because the jury might be inclined to punish the defendant for that uncharged act. (Ewoldt, supra, 7 Cal.4th at p. 405.) The trial court found that this factor weighed "against inclusion of the evidence" and invited the parties to propose a jury instruction to help mitigate any prejudice, "such as a stipulation that the Defendant was . . . appropriately punished, or an instruction repeating to them they are not to consider any punishment that was received or misuse the evidence for any improper purpose." Defense counsel did not request an instruction, and the jury was never told that Ramos had not been punished for molesting Mir.
The fact that the jury was not informed about prosecution of or punishment for the uncharged act slightly allays the potential prejudice arising from this fact, particularly because there is no evidence to suggest that the jury was confused by Mir.'s testimony or sought to discern whether Ramos had been punished. (See People v. Waples, supra, 79 Cal.App.4th at p. 1395 [finding "the fact that this jury was not informed that Waples was never punished for molesting Christina provided the trial court with more reason to admit her testimony than had it been told the truth that he had not"]; Branch, supra, 91 Cal.App.4th at p. 284 [noting "the record provide[d] no evidence to support" the hypothesis that the jury may have wanted to punish the defendant for the prior uncharged offenses, since none of the jury questions or read-back requests related to the " 'other offenses' " or testimony on that issue].) Here, the jury during deliberations asked no questions of the court about Mir.'s testimony or punishment for the uncharged prior offense, but asked only for S.'s "entire testimony in court."
Whether Mir.'s testimony was merely cumulative of other, undisputed propensity evidence presented a closer question. There is no dispute that the prior offense evidence admitted in the prosecution's case-in-chief (the testimony of M. and X.) was unrefuted. Ramos argues that the convictions for those prior offenses already proved his propensity for molesting young girls. On this point, the trial court reiterated that it considered the dispositional evidence from the convictions related to the molestation of M. and X., as well as its exclusion of potential section 1108 witnesses L. and Y., and on balance continued to find Mir.'s testimony had significant probative value as rebuttal evidence due to defense efforts to discredit S. The court noted that Mir.'s testimony would not add significantly more time to the trial.
We find that the defense's election not to challenge the prior convictions or testimony of M. and X. did not obviate the relevance of other prior offense evidence under section 1108. (See People v. Story (2009) 45 Cal.4th 1282, 1295 [in admitting four prior sexual offenses against separate victims, the trial court "carefully considered the evidence, found it had significant probative value—as it did—and took steps to minimize any undue prejudice" by "limit[ing] the evidence to what was relevant"].) As the trial court noted, Mir.'s testimony stood independent from the evidence of the other prior offenses and remained probative of S.'s credibility in disclosing the conduct. (Cottone, supra, 57 Cal.4th at p. 287 [prior offense serves "as circumstantial evidence supporting an inference that the defendant committed the charged offense, by demonstrating the defendant's propensity and bolstering the victim's credibility"].) Further, the testimony lasted less than 10 minutes.
In sum, Ramos fails to show, under the abuse of discretion standard, that the trial court's carefully considered analysis under section 352 was unsound. (Rodrigues, supra, 8 Cal.4th at p. 1124 [trial court's discretionary ruling will not be disturbed on appeal except on a showing that it was " 'arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice' "].)
3. Any Error in the Admission of Mir.'s Testimony Was Harmless
Even if we were to conclude that Mir.'s testimony should have been excluded under section 352, Ramos is unable to demonstrate reversible error.
Ramos acknowledges that the erroneous admission of evidence is ordinarily subject to Watson review for error under state evidentiary rules (People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson)), but contends that in this case the admission of Mir.'s testimony was so improper and inflammatory as to subject the error to Chapman review for violation of his federal constitutional right to a fair trial (Chapman v. California (1967) 386 U.S. 18, 24). We are not persuaded.
In Jandres, we explained that insofar as " 'the application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution,' " courts " 'review allegations of error under the "reasonable probability" standard of Watson . . . .' (People v. Marks (2003) 31 Cal.4th 197, 227.)" (Jandres, supra, 226 Cal.App.4th at p. 357; see also People v. Benavides (2005) 35 Cal.4th 69, 91 ["generally, violations of state evidentiary rules do not rise to the level of federal constitutional error"].) This includes the erroneous admission of unduly prejudicial sexual offense propensity evidence. (Jandres, supra, at p. 357; see Harris, supra, 60 Cal.App.4th at p. 741 [applying Watson standard to determine prejudicial error]; People v. Mullens (2004) 119 Cal.App.4th 648, 659 [same].)
Ramos argues that Mir.'s testimony invited the jury to infer that he was a lifelong predator who had been molesting children for the past half century and engaging in more extreme and inflammatory acts than he did with S., M., and X. But by way of example, any effect of Mir.'s testimony cannot be deemed more inflammatory or unfair than the improper evidence admitted in Harris, which despite its perverse and disturbing details warranted review for reversible error under the Watson standard. Accordingly, a finding that the trial court in this case abused its discretion by admitting Mir.'s testimony would be subject to Watson review to determine if "it is reasonably probable that a result more favorable" to Ramos "would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
In view of the nature and strength of the evidence presented at trial, we do not find a "reasonable probability" that the exclusion of Mir.'s testimony would have altered the outcome favorably for Ramos. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [" 'a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility' "].) S.'s testimony describing the molestation was compelling and consistent with her previous statements to the police. What is more, S.'s description of Ramos's verbal and physical conduct during the incident was strikingly similar to how M. and X. described the prior offenses. Their testimony, and the fact that Ramos was convicted for those offenses, was unrefuted.
Moreover, the inconsistencies that the defense exposed in S.'s story pertained largely to her recall over time about what the expert witness called "peripheral" issues—such as whether the door of the shed was open and the timing of her disclosure. The same is true regarding V.'s testimony at trial, most of which directly corroborated S.'s testimony. What is more, the defense's theory that S. had contrived to falsely accuse Ramos of the molestation based on knowledge that he was "in the computer" was rather incredible, particularly because the only identifiable motive appeared to be an incident that occurred one or more years earlier and involved Mag.'s father, not Ramos. The defense's strategy to show that the shed was inaccessible suffered similar weaknesses, since all three girls (including Y., who testified for the defense) described playing in the backyard and in the shed. This cast some doubt on the testimony of Ramos's granddaughter, A., who alone testified that the girls did not play in the backyard and that the shed was packed from the time it was built.
Also, as previously noted, Mir.'s testimony on rebuttal consumed a minimal amount of time (about 10 minutes of a two-week trial) and generated no questions by the jury. Since the jury could appropriately infer Ramos's propensity to molest young girls from the other, unchallenged section 1108 evidence, we conclude that even absent the admission of Mir.'s testimony, it is not reasonably probable that the jury would have reached a more favorable result.
C. ADMISSIBILITY OF THE UNCHARGED ACT AGAINST MIR. UNDER SECTION 1101 , SUBDIVISION (B)
Ramos contends that the trial court also erred in admitting the evidence of the uncharged act against Mir. to prove Ramos's motive, specifically his attraction to young girls. However, because we have concluded that the court did not abuse its discretion in admitting the evidence under section 1108, we need not consider whether the court abused its discretion in admitting the evidence under section 1101, subdivision (b). (People v. Story, supra, 45 Cal.4th at p. 1295 [declining to consider if evidence was properly admitted under § 1101 after having found the evidence properly admitted under § 1108]; see also People v. Jones (2012) 54 Cal.4th 1, 50 ["Regardless of the admissibility of the challenged evidence under . . . section 1101, subdivision (b), there was no error in the [prior offense] evidence being considered by the jury because it was admissible under . . . section 1108 to show that defendant had a predisposition to commit the sexual offenses in this case."].)
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.