Opinion
D073282
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS RIVERA, JR., Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1305407) APPEAL from a judgment of the Superior Court of Riverside County, Jean Pfeiffer Leonard, Judge. Reversed in part, affirmed in part, and remanded. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jesus Rivera, Jr. guilty of four counts of lewd or lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-4) and 13 counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a); counts 5-17). After striking the true findings on one of Rivera's two prior serious felony and prior strike convictions (§§ 667, subds. (a), (c), (e)(2), 1170.12, subd. (c)(2)), the trial court sentenced Rivera to prison for a term of 50 years, four months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Rivera contends: (1) the trial court prejudicially erred by instructing the jury on the elements required for the crime of exhibiting harmful matter to a minor (§ 288.2, subd. (a)) with respect to counts 5 through 17 because the court gave an instruction based on a version of the statute that was not yet in effect at the time of the conduct at issue; (2) the trial court prejudicially erred in not giving a sua sponte jury instruction on the misdemeanor offense in section 313.1 as a lesser included offense to the crime of exhibiting harmful matter to a minor (§ 288.2, subd. (a)); and (3) the trial court abused its discretion in concluding Evidence Code section 352 did not require the exclusion of evidence that Rivera molested a five-year-old girl more than 30 years earlier.
We conclude that the trial court prejudicially erred in instructing on the elements of exhibiting harmful matter to a minor, and we therefore reverse the conviction on counts 5 through 17. We also conclude that the trial court erred in not instructing with a lesser included offense for counts 5 through 17, but we find no error with respect to the trial court's admission of Rivera's prior molestation of a five-year-old girl.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Rivera was Jane Doe 1's stepgrandfather. When Jane Doe 1 was nine and 10 years old, she visited Rivera's home on the weekends. When she was almost 11 years old, Jane Doe 1 disclosed to a friend and her friend's grandmother that Rivera had been showing her pornographic videos and inappropriately touching her. Police were contacted, and shortly thereafter Jane Doe 1 was interviewed by child forensic interviewer Jacklyn Saldana.
Jane Doe 1 told Saldana that starting when she was nine years old, Rivera would show her pornographic videos on an iPod Touch device. Jane Doe 1 stated that Rivera continued to show her the pornographic videos every weekend that she was at his house.
Jane Doe 1 also described to Saldana several instances in which Rivera touched her inappropriately. According to Jane Doe 1, the first time that Rivera showed her a pornographic video, he also rubbed her upper thigh. The next weekend Rivera also reached to touch Jane Doe 1's thigh, but she stood up and left before he could touch her. Jane Doe 1 recalled an episode in her bed when Rivera touched her chest over her clothing after she told him about a pain in the middle of her chest, but Rivera rubbed his hand all over her chest, including in the area of her breasts and asked, "Does that feel good?" Jane Doe 1 also told Saldana about an incident when she and Rivera were painting a closet and she was standing on something. Rivera helped her down by grabbing her over her clothes with a finger placed between her buttocks and into her "butt hole." Jane Doe 1 stated that the last inappropriate incident between her and Rivera occurred two weeks prior, when she was in a car with Rivera going to Taco Bell. Rivera pulled his penis out of his pants and said, "Look at my private." After they parked the car at home, Rivera asked her if she wanted to watch a video, but she declined, stating that they should go inside and eat. Jane Doe 1 also stated that when she turned 10 years old, Rivera started to talk more about sex, explaining to her what happens during sex, and advising her " 'don't be calm, be wild' " during sex.
Rivera was charged with four counts of lewd or lascivious conduct with a child under the age of 14 (§ 288, subd. (a); counts 1-4) and 13 counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a); counts 5-17). The People also alleged that Rivera incurred two prior convictions, which qualified as serious felonies (§ 667, subd. (a)) and prior strikes (§§ 667, subds. (c), (e)(2), 1170.12, subd. (c)(2)).
When she testified at trial, Jane Doe 1 was 13 years old. Jane Doe 1 testified that all of the things she told Saldana when she was 10 years old were true, even if her memory of the events was no longer as good. Jane Doe 1 remembered Rivera showing her pornographic videos on the iPod Touch device on at least four occasions, and while showing her the videos, Rivera said she had to learn about having sex. Jane Doe 1 described two different occasions when Rivera touched her crotch in the closet when helping her down from the ladder or dresser on which she was standing: one time when he touched between her buttock cheeks and one time when he touched her vagina. Jane Doe 1 stated that Rivera had also touched her thigh on three or four occasions. She also testified about the incident that occurred during the drive to Taco Bell, during which Rivera touched her thigh and later took out his penis. Jane Doe 1 testified that during the Taco Bell incident, Rivera also told her that sex hurts, and he drew a picture of a vagina in her notebook.
During trial, the jury heard testimony from Jane Doe 2, who was 39 years old at the time of trial. Jane Doe 2 testified that Rivera was her cousin by marriage. Thirty-four years earlier, when she was five years old, Rivera molested her. Specifically, Jane Doe 2 recalled that Rivera took her into the bathroom, pulled down her panties, touched her vagina with his hands, and lifted her and "put [her] inside his pants." Jane Doe 2 recalled "very hot skin to skin" contact. She felt contact between her vagina and Rivera's penis, but she did not recall actual insertion. At trial, Jane Doe 2 testified that she remembers going to court concerning the molestation incident on a prior occasion. Rivera's wife testified at trial that she had known about Jane Doe 2's molestation allegations since 1982.
The jury found Rivera guilty on all counts. The trial court made a true finding on Rivera's two prior convictions that qualified as prior serious felony convictions and prior strikes. It then granted Rivera's motion to strike the true findings on one of those prior convictions because the record did not contain evidence that Rivera was properly advised of and waived his constitutional rights as to his guilty plea for that conviction.
The trial court sentenced Rivera to prison for a term of 50 years, four months. The term was comprised of 28 years for the four lewd act counts (§ 288, subd. (a)), 17 years, four months for the 13 counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a)), and a five-year enhancement based on Rivera's one remaining prior serious felony conviction (§ 667, subd. (a)).
II.
DISCUSSION
A. The Trial Court Prejudicially Erred in Instructing on the Elements of Exhibiting Harmful Matter to a Minor
1. The Jury Was Instructed Based on a Version of Section 288 .2, Subdivision (a) That Was Not in Effect at the Time of Rivera's Crimes
Rivera was charged with 13 counts of exhibiting harmful matter to a minor in violation of section 288.2, subdivision (a) for conduct that occurred between June 1, 2011 and May 11, 2013. Accordingly, Rivera was charged with violating the version of 288.2 subdivision (a) that was in effect during that time period.
The parties do not dispute that the version of section 288.2, subdivision (a) in effect during 2011 through 2013 applies in this case. Retroactive application of a statutory amendment which expands the scope of an existing crime violates the ex post facto clauses of the state and federal Constitutions, which offer protection from laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43; see also People v. Grant (1999) 20 Cal.4th 150, 158; U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9.) As relevant here, " 'The clearest example of [an ex post facto] law is one which defines a new crime and applies its definition retroactively to [punish] conduct which was not criminal at the time it occurred.' " (In re E.J. (2010) 47 Cal.4th 1258, 1277.) Further, " 'in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application.' " (People v. Brown (2012) 54 Cal.4th 314, 319-320; see also § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared."].) Therefore, to avoid imposition of an ex post facto law and honor the presumption that statutes operate prospectively, Rivera's prosecution was necessarily governed by the version of the statute in effect at the time he committed the charged offenses between 2011 and 2013.
At the time Rivera committed the charged crimes, section 288.2, subdivision (a) set forth the following elements of the crime of exhibiting harmful matter to a minor: "Every person who, with knowledge that a person is a minor, . . . knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means . . . any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished . . . ." (Former Pen. Code, § 288.2, subd. (a), italics added.)
As defined in section 313, subdivision (a), " 'Harmful matter' means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." There is no dispute in this case that the pornographic videos that Rivera showed to Jane Doe 1 constituted harmful matter.
In the time period of June 1, 2011 to May 11, 2013, three slightly different versions of section 288.2, subdivision (a) were in effect. (Stats. 1997, ch. 590, § 1 [eff. to Sept. 30, 2011]; Stats. 2011, ch. 15, § 317 [eff. Oct. 1, 2011 to June 26, 2012]; Stats. 2012, ch. 43, § 16 [eff. June 27, 2012 to Dec. 31, 2013].) Because the differences between those versions are not pertinent to the issues presented here, we do not discuss them.
Effective January 1, 2014, the statute was substantively amended. (Stats. 2013, ch. 777, § 2 [amending § 288.2].) Under the current version of section 288.2, subdivision (a), a crime is committed when a person "knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means" any harmful matter to a minor "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other." (Italics added.) Further, the amended statute states that "an intimate body part includes the sexual organ, anus, groin, or buttocks of any person, or the breasts of a female." (§ 288.2, subd. (d).)
Under the current version of the statute, section 288.2, subdivision (a)(1) criminalizes exhibiting to a minor "any harmful matter that depicts a minor or minors engaging in sexual conduct," and section 288.2, subdivision (a)(2) criminalizes exhibiting all other types of harmful matter.
Comparing the versions of the statute in effect before and after January 1, 2014, the last element has been substantially changed. Formerly, the statute required the People to prove that the defendant acted "with the intent or for the purpose of seducing a minor." (Former § 288.2, subd. (a).) Currently, the statute requires the People to prove that the defendant acted "with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other" (§ 288.2, subd. (a)(1)), including one person touching the other person's "sexual organ, anus, groin, or buttocks . . ., or the breasts of a female." (§ 288.2, subd. (d).)
The jury instruction describing the elements of section 288.2 (CALCRIM No. 1140) was revised following the statutory amendment to section 288.2 that went into effect on January 1, 2014. During Rivera's trial, the jury was mistakenly instructed with the revised version of CALCRIM No. 1140, which sets forth the elements required to establish a violation of the amended statute rather than the statute in effect at the time Rivera committed his crimes.
Neither the parties nor the trial court appear to have been aware that a different version of section 288.2 was in effect at the time Rivera committed the acts at issue in his trial, and thus did not realize that the jury was being instructed with an incorrect version of CALCRIM No. 1140. The confusion on this matter is evidenced, for example, by the trial court's discussion with counsel of whether, for some of the counts, the People had presented evidence that Rivera showed Jane Doe 1 pornographic videos depicting minors and thus whether the jury could be instructed as to the elements of a violation of 288.2, subdivision (a)(1), in the amended statute, which makes it a crime to exhibit child pornography to a minor. However, the statutory distinction between child pornography and adult pornography did not exist in the version of the statute in effect at the time of Rivera's acts.
Accordingly, as relevant here, the jury was instructed with the following version of CALCRIM No. 1140:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant showed, exhibited, or offered to exhibit harmful material to another person by any means;
"2. When the defendant acted, he knew the character of the material;
"3. When the defendant acted, he knew, should have known, or believed that the other person was a minor;
"4. When the defendant acted, he intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or of the other person;
"AND
"5. When the defendant acted, he intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person. [¶] . . . [¶]
"For the purpose of this instruction, an intimate body part includes the sexual organ, anus, groin, or buttocks of any person, or the breasts of a female." (Italics added.)
2. The Instruction Misstated the Elements of the Crime
Rivera contends that the trial court violated his rights to due process and a jury trial when it instructed the jury with an erroneous instruction on the elements of section 288.2, subdivision (a).
Although defense counsel did not object to the error in the jury instruction, the People do not contend that Rivera has forfeited his ability to seek reversal based on the erroneous instruction. Indeed, we find no basis to conclude that the argument has been forfeited. "Where . . . defendant asserts that an instruction is incorrect in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11.) Further, a defendant does not forfeit the right to obtain a reversal based on an instructional error when the defendant establishes that his substantial rights have been affected by the error, and that analysis also requires us to consider the merits of the argument. (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50, 64; People v. Franco (2009) 180 Cal.App.4th 713, 719.)
"Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480 (Flood).) Both the constitutional right to due process in the Fifth Amendment and the constitutional right to a jury trial in the Sixth Amendment "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (United States v. Gaudin (1995) 515 U.S. 506, 509-510.)
The People do not dispute that Rivera's constitutional right to due process and a jury trial would be infringed if the jury was erroneously instructed on the elements required to convict him under the version of section 288.2, subdivision (a) in effect at the time of his crimes. However, the People contend that there is no legal error in this case because jury instructions given to Rivera's jury did not misstate the elements of the applicable version of section 288.2. Specifically, the People contend that Rivera's argument "rests on a faulty premise: that the phrase 'seducing a minor' has a different and more narrow meaning than the more specific language used in the newer statute and accompanying instruction." The People argue that "for our purposes, there is no legal difference between the two prohibited intents" in the different versions of the statute, and "all illegal intents under the current statute certainly would have been prohibited under the old." According to the People, "all conduct proscribed by the language used in the instructions here was also proscribed by the language used in the prior instruction and statute." The People contend that "[d]espite . . . arguably using the wrong pattern jury instruction, the question jurors were asked to resolve regarding Rivera's specific intent was the same regardless of the words the court used to describe that intent."
To evaluate the People's argument, we focus our inquiry on the following question: May a defendant be found to have acted "with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other" (§ 288.2, subd. (a)(1)), but not have acted "with the intent or for the purpose of seducing a minor" (former § 288.2, subd. (a)).
Two published cases discuss and define the phrase "with the intent or for the purpose of seducing a minor" as used in former section 288.2, subdivision (a). The issue was first addressed in People v. Hsu (2000) 82 Cal.App.4th 976 (Hsu), where the court rejected the defendant's argument that "the word 'seducing' is impermissibly vague because it is not defined." (Id. at p. 992.) Hsu explained that "[a]lthough 'seduce,' . . . can mean simply 'to lead astray,' it is also defined as 'persuading into partnership in sexual intercourse.' (Webster's 3d New Internat. Dict. (1981) p. 2054.) In the context of [the statute], with its references to gratifying lust, passion, and sexual desire, people of ordinary intelligence . . . would readily understand 'seducing' as used here to mean the latter definition." (Hsu, at p. 992, citation omitted.)
The second case to consider the issue was People v. Jensen (2003) 114 Cal.App.4th 224 (Jensen). There, the defendant, a male, was convicted of violating section 288.2 by showing pornographic matter over the Internet to someone he believed to be a 13-year-old boy, in the course of which he persuaded the boy to masturbate himself, although he never met the boy in person. (Jensen, at pp. 227-235.) The defendant contended that the People had not established that he acted with " 'the intent, or for the purpose of seducing a minor' " as specified in the statute, and Jensen agreed. The court explained, "We agree with Hsu that, as used in [the statute], the word 'seducing' was not intended to have the vague meaning of 'lead[ing] astray' (Webster's Collegiate Dict. (10th ed. 1999) p. 1057) but to have the precise meaning of 'carry[ing] out the physical seduction of: entic[ing] to sexual intercourse.' (Webster's Collegiate Dict. (10th ed.1999) p. 1057.) And, in this context, 'sexual intercourse' clearly refers to 'intercourse involving genital contact between individuals' rather than 'heterosexual intercourse involving penetration of the vagina by the penis.' (Webster's Collegiate Dict. (10th ed.1999) p. 1074.) Thus, the 'seducing' intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor. Intending to entice a male minor to masturbate himself does not satisfy this 'seducing' intent element of [the statute]." (Jensen, at pp. 239-240.)
As shown by this discussion, both Jensen and Hsu relied on the dictionary definition of "seducing" to conclude that former section 288.2 requires the People to prove that the defendant intended to entice the minor into sexual intercourse. As Jensen clarified, in the context of a homosexual relationship, the term sexual intercourse could be understood to mean something other than penetration of the vagina by the penis, but still required "genital contact between individuals." (Jensen, supra, 114 Cal.App.4th at p. 239.) Jensen summarized its analysis by stating that "the 'seducing' intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor." (Id. at pp. 239-240, italics added.) In context, however, it is clear that by referring to "a sexual act," Jensen meant to refer to sexual intercourse involving genital contact between individuals, as set forth in the dictionary definitions that it quoted, not simply any kind of sexually motivated conduct that fell short of genital contact.
As we will explain, based on the above, we conclude that the last element in the former version of section 288.2, subdivision (a) describes an intent that is more narrow than the intent set forth in the current version of the statute and reflected in the jury instructions used in this case. Premised on the current version of the statute, the jury was instructed that the last element of the statute required the People to prove that "[w]hen the defendant acted, he intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person." The jury was further instructed that intimate body parts included "the sexual organ, anus, groin, or buttocks of any person, or the breasts of a female." (§ 288.2, subd. (d).) This description of the defendant's intent is far broader than the intent to entice a minor into sexual intercourse, or in the case of a homosexual relationship, to entice the minor into genital contact between individuals, as Jensen and Hsu described. Under the instruction given to the jury, many different types of touching that do not qualify as sexual intercourse or genital contact are sufficient to satisfy the last element of the crime. Specifically, under the instruction given to the jury, the People could satisfy the last element by proving the defendant acted with the intent of engaging in any of several acts not prohibited by the former version of the statute, including conduct clearly not constituting sexual intercourse, such as the touching by one party of the anus, groin, buttocks or female breasts of the other party.
The last element of the former and current versions of the statute also differ in that the former version of the statute includes the concept of seduction, which includes the concept of enticement and persuasion of the other person to engage in the act. Specifically, Jensen defined seducing as intending "to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor" (Jensen, supra, 114 Cal.App.4th at p. 240, italics added) and Hsu defined seducing as " 'persuading into partnership in sexual intercourse.' " (Hsu, supra, 82 Cal.App.4th at p. 992.) Indeed, had Rivera's jury been instructed with the version of CALCRIM 1140 corresponding to the version of the statute in effect at the time of his crimes, it would have been instructed that "To seduce a minor means to entice the minor to engage in a sexual act involving physical contact between the seducer and the minor." (Former CALCRIM No. 1140 (2013).) In contrast, the instruction given to Rivera's jury based on the current version of the statute simply referred to the intent of the defendant to accomplish certain acts regardless of whether the victim has been enticed or persuaded to participate in them. Specifically, the jury here was instructed that the People must prove that when the defendant exhibited the harmful matter "he intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person" (italics added), completely omitting any requirement that the defendant intended to entice the minor to engage in an act.
In sum, we conclude that because the intent of "seducing a minor" as set forth in the prior version of the statute (former § 288.2., subd. (a)) is substantively different from the intent "to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person" as the jury was instructed here, the trial court erred by misinstructing the jury on the elements required to establish a violation of section 288.2, subdivision (a), and therefore also infringed Rivera's constitutional right to due process and right to a jury trial with respect to the convictions for counts 5 through 17.
3. The Instructional Error Was Prejudicial
To determine whether reversal of the convictions for counts 5 through 17 is required, we must decide whether the erroneous instruction was prejudicial. To evaluate that issue we apply the harmless error standard applicable to errors involving a defendant's federal constitutional rights, as "instructional error that improperly describes or omits an element of an offense . . . falls within the broad category of trial error subject to Chapman review." (Flood, supra, 18 Cal.4th at pp 502-503.) Under that standard, when " 'the jury was misinstructed on an element of the offense . . . , reversal of the . . . conviction is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.' " (People v. Harris (1994) 9 Cal.4th 407, 416.) The test is "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " (Neder v. United States (1999) 527 U.S. 1, 15 (Neder).)
The People argue that the instructional error was harmless beyond a reasonable doubt because "Rivera's conduct in touching [Jane] Doe 1's vaginal area and breasts, and grooming her for more serious sexual offenses, constituted strong evidence of his intent to engage in a sexual act involving physical contact with [Jane] Doe 1." The People contend that we should therefore conclude beyond a reasonable doubt that the jury would have found that Rivera exhibited the pornographic videos to Jane Doe 1 with the intention of enticing her to engage in sexual intercourse or other genital contact with him had it been properly instructed, so that the erroneous instruction did not contribute to the verdict.
We disagree. We cannot conclude beyond a reasonable doubt that, based on the evidence presented at trial, the jury would have concluded that when Rivera exhibited the pornographic videos to Jane Doe 1 he intended "to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor," (Jensen, supra, 114 Cal.App.4th at p. 240), meaning that he had the intention to "entice [Jane Doe 1] to sexual intercourse." (Id. at p. 239.)
The evidence at trial was that Rivera showed pornographic videos to Jane Doe 1 and also touched her thigh when doing so. He also touched her breasts, touched her crotch when lifting her in the closet, and exposed his penis to her and told her to look at it. Rivera told Jane Doe 1 that she needed to learn about sex and told her to be "wild" when she eventually had sex, but there was no evidence that Rivera ever suggested that Jane Doe 1 engage in any sex act with him. Thus, although the jury could have decided based on the evidence that Rivera was grooming Jane Doe 1 for future sexual acts with him, the evidence also could support a different finding. Specifically, because Rivera's conduct was limited to touching Jane Doe 1's intimate body parts, the jury reasonably could decide based on the evidence, that Rivera showed Jane Doe 1 the pornographic videos for his own arousal and with the intent of touching her intimate body parts, but that the evidence was not sufficient for it to find beyond a reasonable doubt that Rivera intended to engage in sexual acts with Jane Doe 1 when he showed her the pornographic videos.
Moreover, because the jury was not instructed that Rivera must have intended to seduce Jane Doe 1, it was not instructed on the definition of "seduce" as set forth in the prior version of CALCRIM No. 1140, which includes the requirement that Rivera intended to "entice the minor to engage in a sexual act." (Former CALCRIM No. 1140 (2013), italics added.) Had the jury been correctly instructed on the definition of seducing as including an intent to entice Jane Doe 1 to engage in a sexual act, it may have concluded that the evidence did not establish any intent to entice Jane Doe 1 to engage in sexual conduct. Instead, based on the evidence, the jury could reasonably have found that Rivera called over Jane Doe 1 to show her a pornographic video on his iPod Touch with the intent to touch her intimate body parts against her will while she was next to him, without establishing that Rivera had the intent to entice Jane Doe 1 to agree to engage in a sexual act with him.
In sum, we conclude that the instructional error was prejudicial, as it does not appear beyond a reasonable doubt that the error did not contribute to the verdict. (Neder, supra, 527 U.S. at p. 15.) Therefore, we reverse the convictions on counts 5 through 17 for exhibiting harmful matter to a minor. (§ 282, subd. (a).) B. In Counts 5 Through 17, the Trial Court Erred in Not Sua Sponte Instructing with the Lesser Included Offense of Misdemeanor Exhibiting Harmful Matter to a Minor Under Section 313 .1
Rivera contends that the trial court also erred as to counts 5 through 17 because it did not instruct the jury that it could find him guilty of the lesser included misdemeanor offense of exhibiting harmful matter to a minor in violation of section 313.1. Although we have reversed the convictions on counts 5 through 17, for the sake of providing guidance to the parties in the event that the counts are retried, we briefly address the issue.
Section 313.1, subdivision (a) provides, "Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly sells, rents, distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter to the minor shall be punished as specified in Section 313.4." Case law establishes that section 313.1 is a lesser included offense of section 288.2, in that it criminalizes exhibiting harmful matter to a minor, but does not require the People to establish the defendant's specific intent as required for a conviction under section 288.2. (Jensen, supra, 114 Cal.App.4th at p. 244; People v. Nakai (2010) 183 Cal.App.4th 499, 510.)
In turn, section 313.4 provides for misdemeanor punishment unless a defendant has previously been convicted under section 313.1, except for under subdivision (e) of that section.
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) The existence of " 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." (Ibid.)
As we have discussed above in connection with our harmless error analysis for the instructional error on the elements of section 288.2, subdivision (a), in this case, based on the evidence presented at trial, the jury could have found that although the People established that Rivera exhibited harmful matter to a minor, the People did not establish that he acted "with the intent or for the purpose of seducing a minor" (former § 288.2, subd. (a)) because he may not have intended to entice Jane Doe 1 to engage in a sexual act with him. Accordingly, the lesser included offense of misdemeanor exhibiting harmful matter to a minor in violation of section 313.1, subdivision (a) finds substantial support in the evidence presented at trial. The trial court thus should have provided a sua sponte instruction on that lesser included offense. C. The Trial Court Did Not Abuse Its Discretion in Concluding That Jane Doe 2's Testimony Was Not Required to Be Excluded Pursuant to Evidence Code Section 352
Rivera's final contention is that the trial court erred in concluding that Jane Doe 2's testimony was not required to be excluded pursuant to Evidence Code section 352.
During motions in limine, the court considered the People's request to admit the testimony of Jane Doe 2 regarding Rivera's molestation of her that occurred 34 years prior when she was five years old, and when Rivera was 17 years old. The trial court concluded that the evidence was admissible pursuant to Evidence Code section 1108, which provides, "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." (Evid. Code, § 1108, subd. (a).) Over defense counsel's objection, the trial court also specifically concluded that the evidence was not required to be excluded pursuant to Evidence Code section 352 because it would not be unduly time consuming and the probative value of the testimony would outweigh any prejudice. In making its ruling, the trial court specified that Jane Doe 2 would be limited to testifying about what she personally remembered about the incident.
The parties explained to the trial court that because of the age of the incident, they were not able to find records relating to it except for a document showing that Rivera had been arrested in connection with the incident. --------
As we have described, Jane Doe 2 subsequently testified at trial that she was related to Rivera as a cousin by marriage, and when she was five years old, Rivera took her into the bathroom, pulled down her panties, touched her vagina with his hands, and lifted her and "put [her] inside his pants," causing "very hot skin to skin" contact between her vagina and Rivera's penis. The testimony was very brief, comprising only nine pages in the reporter's transcript. Rivera contends that the trial court erred in overruling his objection that the evidence should not have been admitted pursuant to Evidence Code section 352.
Pursuant to Evidence Code section 352, "[a] trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time." (People v. Scott (2011) 52 Cal.4th 452, 490.) " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " ' " (Id. at p. 491.) "Rulings regarding . . . Evidence Code section 352 are reviewed under an abuse of discretion standard." (People v. Lee (2011) 51 Cal.4th 620, 643.)
Rivera contends that the evidence of the molestation "had little probative value because it had occurred thirty years prior to the charged offenses and there was no evidence that [Rivera] had committed a sexual offense during that thirty year period, and this evidence was extremely inflammatory because it indicated that [Rivera] had forced sexual intercourse with a five year old, while the present case simply involved the touching of the intimate body parts of a nine year old on a few occasions, mostly over her clothes."
We understand Rivera's argument, but we conclude that he has not established that the trial court abused its discretion in admitting the evidence. Although the incident happened approximately 30 years earlier, its probative nature was still significant because it showed that after becoming a sexually mature person at the age of 17, Rivera exhibited a propensity toward pedophilic behavior. Rivera's past sexual molestation of a prepubescent female related to him by marriage was relevant to support the credibility of Jane Doe 1's testimony that Rivera engaged in acts of sexual molestation toward her, another prepubescent female relative related to him by marriage. (People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [where the defendant was charged with molesting his 12-year-old step-great-granddaughter, evidence that he molested his 12- year-old stepdaughter 30 years earlier was admissible although it was substantially remote in time, as "significant similarities between the prior and the charged offenses may 'balance[ ] out the remoteness' "].) Further, the fact that Rivera was not known to have molested any other children in the approximately 30 years between his molestation of Jane Doe 2 and Jane Doe 1 does not negate the probative value of the evidence because, regardless of the passage of time, a finder of fact could reasonably view Rivera's past pedophilic behavior as demonstrating an enduring life-long trait for pedophilic attraction.
Rivera argues that the evidence was "inflammatory" in that it involved sexual molestation of a young child. However, the trial court reasonably could conclude that the inflammatory nature of the evidence was what made it relevant to the issues presented here, namely whether Rivera has a propensity to commit sexual molestation against prepubescent girls. Accordingly, the trial court was within its discretion to conclude that the probative nature of the evidence outweighed any prejudice.
In sum, we conclude that the trial court did not abuse its discretion by admitting Jane Doe 2's testimony.
DISPOSITION
The convictions for exhibiting harmful matter to a minor (§ 288.2, subd. (a)) in counts 5 through 17 are reversed. In all other respects, the judgment is affirmed. This matter is remanded for further proceedings consistent with this opinion.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.