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People v. Rincon

California Court of Appeals, Second District, First Division
Feb 18, 2011
No. B224675 (Cal. Ct. App. Feb. 18, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA 083691 John David Lord, Judge.

Vanessa Place, 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 Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.


ROTHSCHILD, Acting P. J.

A jury convicted Everardo Gutierrez Rincon of five sex offenses involving minors. Rincon appeals, arguing that the trial court abused its discretion by admitting evidence of an uncharged sex offense involving Rincon’s half-sister. We conclude that the error of which Rincon complains was invited at least in part, and that in any event the error was harmless. We therefore affirm.

BACKGROUND

The information charged Rincon with the following crimes: four counts of committing a forcible lewd act upon a child (Jocelyn A.), in violation of subdivision (b)(1) of Penal Code section 288 (counts 1 through 4); one count of misdemeanor unlawful sexual intercourse with a minor (Brenda P.) within three years of Rincon’s age, in violation of subdivision (b) of Penal Code section 261.5 (count 5); and one count of committing a lewd act upon a child (Carla D.G.), in violation of subdivision (a) of Penal Code section 288 (count 6). The information further alleged as to counts 1 through 3 that Rincon personally used a firearm within the meaning of Penal Code section 667.61, subdivisions (a), (b), and (e)(4). The remaining special allegations-as to count 4 that Rincon personally used a deadly and dangerous weapon within the meaning of Penal Code section 667.61, subdivisions (a), (b), and (e), and as to counts 1 through 4 and 6 that he committed child molestation against more than one victim within the meaning of Penal Code section 667.61, subdivisions (a), (b), and (e)(5)-were dismissed. On Rincon’s motion pursuant to Penal Code section 995, count 6 was dismissed.

Rincon pleaded not guilty. The charges were tried to a jury, which found Rincon guilty on counts 1 through 5 and found true the firearm allegation as to counts 1 through 3. Rincon’s motion for new trial was denied.

The court sentenced Rincon to 51 years to life in state prison, calculated as follows: 15 years to life on count 1, plus 15 years to life on count 2, plus 15 years to life on count 3, plus 6 years on count 4. The court also sentenced Rincon to 180 days in county jail as to count 5. The court imposed various statutory fines and fees, ordered Rincon to provide DNA samples, and credited Rincon with 247 days of presentence custody (216 days actual time and 31 days good time/work time).

Jocelyn was 13 years old at the time of the charged incidents with Rincon, who is her mother’s boyfriend’s brother; Rincon was then 18 years old. At trial, Jocelyn testified that on three separate occasions Rincon displayed a handgun to her (and once pointed it at her) in order to force her to have sex with him. In his trial testimony, Rincon admitted that he had sex with Jocelyn four times, but he claimed it was consensual, denied that he raped or threatened her, and denied that he used a gun or had ever even owned a gun.

Brenda was 15 years old at the time of the charged incident with Rincon, who was then 18 years old. Two years earlier she had been Rincon’s girlfriend for less than one month. Brenda testified that in the charged incident, Rincon drove her to a motel, stopping along the way to buy condoms. Inside the motel room, Rincon unbuttoned Brenda’s pants, she rebuttoned them, he unbuttoned them again, and she rebuttoned them again. Next, fearing that Rincon was becoming angry, Brenda took off her pants, lay down on the bed, and covered herself with a blanket. Rincon then got into bed with her and put his penis in her vagina. In his trial testimony, Rincon admitted that he and Brenda consensually tried to have sex at the motel, but he denied that he penetrated her. During cross-examination, however, he admitted that he inserted his penis in her vagina “about half an inch, not all the way.”

DISCUSSION

The prosecution introduced evidence at trial concerning the conduct alleged in the dismissed count. Carla was 11 years old at the time of the alleged incident with Rincon, who was then 17 and is her half-brother. She was on her bed watching television, and Rincon was asleep in another bed in the same room. Rincon woke up, sat down on Carla’s bed, and starting watching television with her. At trial, Carla testified that Rincon kissed her on the cheek but did nothing more. A police officer testified that Carla told him Rincon kissed her three times on the mouth and rubbed her vagina over her clothing, but at trial Carla denied having told the police that. At the preliminary hearing, however, she had testified that Rincon rubbed her vagina over her pants. The officer also testified at trial that Carla told him Rincon tried to pull down her pants and asked her if she wanted to “do it.”

Carla got up off the bed and went to the bathroom to take a shower. A police officer testified that Carla told him that Rincon entered the bathroom, opened the shower curtain a little bit (apparently about an inch), and asked if he could look at her, and that she told him he could not and told him to get out, and he complied. At trial, Carla denied having told that to the police.

Before trial, Rincon sought to exclude the evidence of the incident with Carla under Evidence Code section 352, arguing that probative value of the evidence was substantially outweighed by the risk of undue prejudice. Rincon did not dispute that he had sex with Jocelyn A. and Brenda P. Rather, the only factual disputes concerned consent, coercion, and the use of the gun. Rincon argued that the incident with Carla had no probative value on those issues but would severely bias the jury against him for engaging in incestuous sexual misconduct with his half-sister.

All subsequent statutory references are to the Evidence Code. Subdivision (a) of section 1101 provides that “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.” Subdivision (a) of section 1108, however, provides that “[i]n 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.” Evidence Code section 352 provides that the court may exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice[.]” The combined effect of those provisions is that in a prosecution for a sex offense, evidence that the defendant committed a previous sex offense is admissible if its probative value is not substantially outweighed by the likelihood of undue prejudice. The trial court’s admission or exclusion of evidence under section 352 is reviewed for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

The trial court heard extensive argument on the issue and largely agreed with the defense until the prosecution offered to omit any reference to Carla’s being Rincon’s half-sister. The court then reasoned that because that restriction eliminated the risk of undue prejudice, the probative value of the evidence would no longer be substantially outweighed, even if the probative value remained slight. Accordingly, the court admitted the evidence subject to that limitation. (“As limited by the People, ... I’ll allow the testimony of Carla.”)

The next day, however, during further discussion of pretrial matters, defense counsel informed the court that if the evidence concerning the incident with Carla was going to be admitted, then he did not want to exclude the information that Carla was Rincon’s half-sister. Defense counsel maintained his objection to the admission of any evidence concerning the incident with Carla, but he stated that if the evidence was going to come in, then he did “want the fact... that she is the defendant’s sister admitted into evidence.” The court therefore removed the limitation it had previously imposed, allowing the parties to introduce evidence that Carla was Rincon’s half-sister. (“[T]hat exclusion order is off.”)

On appeal, Rincon argues that the trial court abused its discretion by admitting evidence of the incident with Carla because the probative value of the evidence was substantially outweighed by the risk of undue prejudice. Rincon’s argument on appeal is based primarily on the claim that the evidence was severely prejudicial because jurors were likely to find incestuous conduct deeply repellant-“[t]he betrayal” involved in incest “would strike most people as of the basest variety, ” and incest “is a primal crime” and “is viscerally repugnant.”

We conclude that insofar as Rincon’s argument is based on the incestuous character of the incident with Carla, Rincon invited the alleged error and therefore cannot complain of it on appeal. (People v. Williams (2008) 43 Cal.4th 584, 629.) The trial court initially ruled that the evidence of the incident would be admitted only if Carla’s status as Rincon’s half-sister were not mentioned. Rincon’s trial counsel then decided that if the evidence of the incident was going to be admitted, he would prefer that the jury know that Carla was Rincon’s half-sister. Counsel so informed the court, which therefore reversed its prior exclusion of evidence that Rincon and Carla are half-siblings. Under these circumstances, Rincon cannot complain on appeal that the evidence of the incident with Carla was unduly prejudicial under section 352 because Carla is his half-sister. The trial court offered to eliminate precisely that prejudicial aspect of the evidence, and Rincon’s trial counsel expressly declined the court’s offer.

Rincon’s only other argument concerning alleged undue prejudice under section 352 is that the jury may have tried to punish Rincon for the uncharged incident with Carla. The jury, however, had no information about whether Rincon was or would be prosecuted for the incident with Carla, so the jury had no basis on which to try to punish Rincon for it; for all the jury knew, Rincon was already being punished for it in another proceeding. Moreover, the jury was instructed that it could consider the evidence of the uncharged offense only for the purpose of determining whether Rincon “was disposed or inclined to commit sexual offenses” and, on that basis, whether Rincon “was likely to commit the charged offenses.” The jury is presumed to follow the instructions it is given. (People v. Cain (1995) 10 Cal.4th 1, 34.)

We note also that the jury knew Rincon was 17 years old at the time of the incident with Carla. It is therefore possible that the jury reasoned that he could not be prosecuted for it in the same case in which he was charged with the offenses against Jocelyn and Brenda, because he committed them when he was 18 and thus was prosecuted for them as an adult.

In any event, we also conclude that any error in admitting the evidence was harmless because it is not reasonably probable that Rincon would have obtained a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) Rincon admitted all of the elements of the charge involving Brenda, and he admitted all of the elements of the charges involving Jocelyn except for the use of force or fear. Jocelyn testified in detail concerning Rincon’s use of a handgun to force her to have sex with him, and the verdict demonstrates that the jury believed that testimony. Despite its incestuous character, Rincon’s alleged sexual misconduct with Carla-kissing her a few times, rubbing her vagina over her clothing, asking if he could look at her in the shower, and then leaving when she refused his request-was relatively insignificant compared to Rincon’s having repeatedly raped Jocelyn at gunpoint, so it is not reasonably probable that the evidence of the incident with Carla caused the jury to feel any more antipathy toward Rincon than it already felt on the basis of the charged offenses. For all of these reasons, we conclude that any error in admitting the evidence was not prejudicial.

Finally, Rincon raises two federal constitutional challenges to section 1108, which allows the admission in a sexual offense case of evidence of prior sexual offenses, subject to discretionary exclusion under section 352. (See footnote 1, ante.) First, Rincon argues that although the California Supreme Court has held that section 1108 does not violate the constitutional right to due process (People v. Falsetta (1999) 21 Cal.4th 903, 910-922 (hereafter Falsetta); People v. Lewis (2009) 46 Cal.4th 1255, 1288-1289), that decision must be reconsidered in light of a subsequent decision of a federal court of appeals (Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, revd. on other grounds sub nom. Woodford v. Garceau (2003) 538 U.S. 202). We are bound by decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and decisions of the lower federal courts on issues of federal law are merely persuasive authority (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 327-328). Accordingly, we must decline Rincon’s request to reconsider a California Supreme Court decision in light of a lower federal court decision.

Second, Rincon argues that section 1108 violates the constitutional right to equal protection because it improperly discriminates between accused sex offenders and other criminal defendants. Rincon argues that the statute should be subject to “at least ‘intermediate’ scrutiny” because it substantially compromises the right of accused sex offenders to a fair trial, but that line of argument is foreclosed by the Supreme Court’s analysis in Falsetta: The court concluded that section 1108 causes “no undue unfairness” by allowing the admission of propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 915.)

Because Rincon’s argument for heightened scrutiny fails, his equal protection challenge must proceed under the rational basis standard of review. He argues that section 1108’s discrimination between accused sex offenders and other criminal defendants “is irrational because the incidence of recidivism for sex offenders is lower than that of robbers or murderers, or other types of offenders.” The argument fails, however, because recidivism rates are not the only potential rational basis for the classification. For example, the Legislature could have reasoned that “the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justifie[s] the admission of relevant evidence of a defendant’s commission of other sex offenses.” (People v. Fitch (1997) 55 Cal.App.4th 172, 184.) The Supreme Court relied on such reasoning in Falsetta, supra, 21 Cal.4th at pp. 915, 918. For all of these reasons, we reject Rincon’s equal protection challenge to section 1108.

DISPOSITION

The judgment is affirmed.

We concur: CHANEY, J., JOHNSON, J.


Summaries of

People v. Rincon

California Court of Appeals, Second District, First Division
Feb 18, 2011
No. B224675 (Cal. Ct. App. Feb. 18, 2011)
Case details for

People v. Rincon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EVERARDO GUTIERREZ RINCON…

Court:California Court of Appeals, Second District, First Division

Date published: Feb 18, 2011

Citations

No. B224675 (Cal. Ct. App. Feb. 18, 2011)