Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF120512. Elisabeth Sichel, Judge.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner-Sobeck, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Christian Rivera appeals a jury conviction for two counts of forcible oral copulation (counts 1 & 2) (Penal Code § 288a, subd. (c)(2)); one count of making a terrorist threat (count 3) (§ 422); and one count of assault with intent to commit sodomy (count 4) (§ 220). The trial court imposed a 16-year prison term as a result of the conviction. Defendant argues his conviction should be reversed because the trial court erroneously admitted prior acts evidence that prejudiced his defense. He also contends the trial court should have stayed the sentence on the terrorist threat charge (count 3) under section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
In connection with counts 1 through 4, defendant was also charged with using a dangerous weapon, a knife, to commit the offenses within the meaning of sections 12022, subdivision (b)(1), and 1192.7, subdivision (c). In count 5, defendant was also charged with the misdemeanor of exhibiting a knife as a deadly weapon in a rude, angry, and threatening manner in violation of section 417, subdivision (a)(1), a misdemeanor. However, the jury was unable to reach a decision on these allegations. Following the jury’s verdict on the other charges, the trial court dismissed these allegations in the interests of justice.
FACTUAL AND PROCEDURAL HISTORY
Bobby B., the victim in this case, was a 15-year-old runaway who could not be found to testify at the time of trial. As a result, the prosecution was permitted to read the victim’s preliminary hearing testimony into the record for the jury to consider. Bobby ran away from his father after his mother died, and at the time of the incident in this case, he was living in a mobile home with his girlfriend, Myrna, her sister Tonia, and their parents, Louis and Rachel. Defendant is a cousin to Myrna and Tonia and a nephew to their parents, Louis and Rachel.
At the preliminary hearing, the victim testified he was unexpectedly alone in the mobile home with defendant on the morning of November 24, 2005. Defendant had been there overnight and had slept on the couch in the living room. Sometime around 9:00 or 10:00 a.m., the victim went in the back bathroom of the home to take a shower and locked the door. About 10 or 15 minutes later, he heard footsteps and saw a silhouette through the shower door. Defendant then appeared in the bathroom with a knife in his hand and opened the sliding door of the shower. The victim covered himself with his hands and asked defendant what he was doing. Defendant said, “I’m crazy” and turned off the water in the shower. The victim testified he was scared. Defendant took his hand and led the victim out of the shower. Defendant then asked the victim if he had ever had his “dick sucked.” When the victim said “no,” defendant put the victim’s penis in his mouth.
After a minute or two, defendant stepped back, pulled his pants down, and said “Now suck mine.” The victim said, “What if I don’t want to?” Defendant responded, “I guess I’ll have to kill you.” The knife was still in defendant’s hand, and because he was afraid, the victim bent down, put defendant’s penis in his mouth for a few minutes, and then took it out and stood up. Defendant then put the victim’s penis back in his mouth for a few minutes. After that, defendant took lotion from a container and rubbed the lotion on his penis, saying to the victim “Now I’m gonna fuck you.” Defendant put the knife on the back of the toilet tank, turned the victim around, and rubbed his penis against the victim’s lower back for about 20 seconds. The victim began to cry and scream about his mother dying. Defendant hugged him and said, “Hey, man, if the cops ever catch you, come find me, my best friend’s a lawyer.” When defendant left the room, the victim found a pair of shorts and sandals, grabbed the knife and jumped out the window. The victim made contact with someone about three homes away who called the police. The victim was no longer at that residence when police arrived, but he had left the knife with the person who reported the crime. The victim called police later the same day at 3:49 p.m. and was then interviewed by police that evening.
The victim estimated defendant had visited the mobile home where he had been staying four or five times prior to the incident and had been there overnight. During prior visits, there were no problems of a sexual nature. However, a week or two before the incident, defendant threatened the victim with a dull knife and then walked away laughing. The victim also learned through his girlfriend that defendant had on a couple of occasions told his uncle (the girlfriend’s father) that social workers knew where the victim was and were coming to the mobile home to get him.
Defendant testified in his own defense. He stated he first met Bobby at his uncle’s house when he went there for Thanksgiving dinner in 2003. At that time, Bobby was introduced to him as the boyfriend of his cousin Myrna. He then saw Bobby at his uncle’s house on subsequent holidays and visits and when the family went away together on a brief vacation. During conversations with his family, defendant expressed concern a number of times about Bobby living at his uncle’s house because he was a runaway, and defendant believed his uncle could get in trouble for harboring a runaway. He also admitted threatening to call social services and have Bobby taken away.
During direct examination, defendant admitted the challenged prior incident of sexual misconduct involving a 14-year-old boy named Ernesto. Defendant testified he approached Ernesto and asked him if he ever had his “dick sucked.” According to defendant, Ernesto stood quietly and did not say “no,” so defendant thought it was possible Ernesto would say “yes.” Defendant also admitted he grabbed Ernesto in the groin area. When asked why he did this, defendant stated as follows: “It was just a spur of the moment. And . . . I repented for what I did. It was just an action that I took and I shouldn’t have.” He testified the incident in the present case simply never took place.
At trial, Ernesto’s testimony was consistent with defendant’s admission. Ernesto testified he went home from work one night after dark, but no one was in the house. He knew his mother was at his grandmother’s house, so he went to a pay phone to call her. Defendant approached Ernesto when no one else was in the area to ask for directions, but then asked Ernesto if he ever had his “dick sucked.” When Ernesto said “no,” defendant told him he had seen something on the internet and was curious. Ernesto told defendant he would not do anything like that, but defendant tried to persuade him by saying no one was around so he should not be ashamed. Defendant also tried to grab Ernesto’s testicles. However, Ernesto saw some other boys pass by, and he told defendant to “get away” because those were his “home boys,” and he was going to call them. As a result, defendant stepped away, and Ernesto was able to call the police.
DISCUSSION
I. Prior Act of Sexual Misconduct
Defendant contends it was prejudicial error for the trial court to admit evidence about the prior act of sexual misconduct against Ernesto under Evidence Code sections 1101, subdivision (b), 1108, and 352, because it is not meaningfully similar to the charged incident. Defendant claims the charged act was much more violent and aggressive than the prior act. Because of these claimed dissimilarities, defendant argues the evidence of the prior sexual misconduct was more prejudicial than probative. He believes the evidence was not probative of motive or intent and prejudicial to his defense because the prosecution’s case against him was relatively weak, making it more likely the jury relied too heavily on the prior act.
“Evidence Code section 1108 allows bad conduct evidence to be admitted to prove ‘predisposition’ to commit sex crimes.” (People v. Harris (1998) 60 Cal.App.4th 727, 730.) To safeguard the “presumption of innocence and other characteristics of due process,” any such bad sexual conduct is subject to exclusion pursuant to the weighing process of section 352. (Ibid.) As a result, evidence about prior bad sexual conduct cannot be admitted when its probative value is substantially outweighed by the possibility it will be too prejudicial, consume too much time, confuse the issues, or mislead the jury. (Ibid.) “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal 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. [Citations.]’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 -1125, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)
“ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) The prior sexual misconduct need not be exactly the same as the facts of the current offense but must be “ ‘ “rationally probative.” ’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 984.) Relevant factors in determining if the defendant was prejudiced by the admission of a prior act of misconduct include whether the prior act was more inflammatory than the charged offense, the possibility the jury might confuse the prior acts with the charged offense, the amount of time between the acts, and whether the defendant had already been convicted and punished for the prior misconduct. (Rucker, supra, 126 Cal.App.4th at 1119.) When evidence of uncharged misconduct is no stronger and no more inflammatory than evidence presented on the charged offense, the potential for prejudice is decreased because these circumstances make it unlikely a jury’s passions would be inflamed by the uncharged misconduct. (People v. Ortiz (2003) 109 Cal.App.4th 104, 118.)
We disagree with defendant’s contention that the challenged prior act of sexual misconduct is not meaningfully similar to the facts of this case. Ernesto, the victim of the prior misconduct, was only 14 years old when the incident involving defendant occurred in 2002. Tellingly, the victim in this case was only 15 years old when the events resulting in the present charges took place. While the prior misconduct took place in a dark but public place, both victims were vulnerable when approached because they were young and alone. Ernesto was alone after dark at a phone booth, and the victim in this case was alone with defendant in the mobile home. Both boys were asked the same exact question following initial contact. Defendant then used force and verbal intimidation with each of the boys but retreated in both cases when he realized the victims would be uncooperative despite his attempts at intimidation. In addition to the factual similarities between the incidents, the prior offense was not remote in time. Rather, it occurred only about two years before the present incident. In addition, the prior misconduct was less inflammatory and thus unlikely to result in emotional bias against defendant.
Defendant argues the two incidents are dissimilar because the conduct against Ernesto was significantly less forceful and aggressive. Although the force used against the victim in this case was more serious, force was used during each offense when verbal persuasion and physical intimidation of each victim were unsuccessful. In other words, the two incidents are still significantly similar even though more force was used in the present case, which occurred later in time, because it is apparent defendant attempted to overpower both victims with force. In addition, the reason for the difference in the level of violence in the two cases can be inferred from the record. Based on the evidence presented at trial, it is apparent defendant had greater access to his victim in this case, and to some extent a relationship of trust, and therefore felt more at liberty to take advantage of the circumstances and engage in more egregious conduct.
In sum, the evidence of prior sexual misconduct is highly probative of defendant’s disposition and desire to convince vulnerable, young boys to participate in sexual acts, as well as his willingness to use force against the victims when they were unwilling to consent. In our view, the challenged evidence fits in the category of damaging but not prejudicial. As a result, we cannot disagree with the trial court’s decision to admit the challenged testimony concerning prior sexual misconduct.
II. Stay of Sentence Imposed
The trial court sentenced defendant to consecutive six-year terms on counts 1 and 2, for two separate acts of forcible oral copulation; a concurrent term of eight months on count 3, for making a terrorist threat; and a consecutive term of four years on count 4, for an assault with intent to commit sodomy, for a total sentence of 16 years in state prison. Defendant contends the trial court erred when it did not stay the sentence on count 3 pursuant to section 654 because the purpose of the terrorist threat was to force the victim to commit oral copulation. To support his argument, defendant cites the victim’s testimony indicating defendant made the terrorist threat for the purpose of forcing the victim to engage in an act of oral copulation. At the time of sentencing, the trial court did not discuss or state a reason for not staying the sentence on count 3. Respondent agrees with defendant’s contention. We also agree.
Section 654, subdivision (a), states in part as follows: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of section 654 is to ensure punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Section 654 “applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) “On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (Ibid.) Thus, when a course of conduct is at issue, the focus of inquiry is whether the defendant entertained single or multiple criminal objectives. (People v. Macias (1982) 137 Cal.App.3d 465, 470.)
Here, counts 2 and 3 were incident to a single objective. According to the victim’s testimony, defendant demanded oral copulation on himself by the victim, and the victim complied with this demand immediately after defendant threatened to kill him if he did not cooperate. Thus, the purpose of the threat charged in count 3 was to facilitate the forcible oral copulation charged in count 2. Under these circumstances, the trial court should have stayed the sentence on count 3. As a result, the sentence must be modified to stay the sentence for count 3.
DISPOSITION
The eight-month prison term imposed on count 3 is modified to stay the term pursuant to section 654. The superior court is directed to amend the abstract of judgment to reflect the modification and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKINSTER J., RICHLI J.