Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09NF2119, James Patrick Marion, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P.J.
Defendant Roger Allan Robinson was convicted of one count of committing a lewd act against a child under age 14 (Pen. Code, § 288, subd. (a)); the jury hung on two other counts of the same charge. He was sentenced to six years in prison and ordered to pay restitution in the sum of $2,405.
On appeal defendant argues admission of certain testimony violated Evidence Code section 352 and the court erred in failing to hold a hearing on the amount of restitution. As does the Attorney General, we agree with the latter contention and remand for the trial court to hold a hearing. In all other respects the judgment is affirmed.
FACTS
In 2001 seven-year-old M.M. was in Penelope Robinson’s (Robinson) second grade class. One day when defendant was serving as the substitute teacher for his wife, M.M. asked him for help. As he squatted beside her desk he put his right hand on her inner thigh and squeezed it. This made M.M. “uncomfortable.” Defendant then went to another girl and, from behind, put his hands on her breasts and squeezed them for five minutes. This bothered M.M. Because M.M. needed more help, defendant returned to her desk and, again from behind, squeezed her breasts for five minutes, making her afraid.
M.M. told her mother what happened and the next day met with her parents and the school principal. M.M. told the principal what happened and then told Robinson.
Maria Knight, the principal’s secretary, sat in this meeting and subsequently was present at a meeting between the principal and defendant. When the principal told defendant that M.M. had reported he had inappropriately touched her breasts, he put his face in his hands and began to “sob[].” Knight thought it was unusual that defendant did not immediately deny the claim and seemed not to know how to react. It took about 10 minutes for defendant to relate that when he had knelt down to help M.M. he had put his arm around her shoulders and maybe she misunderstood that. (Defendant was convicted of the count involving this incident.)
In 2004 10- to 11-year-old T.M. asked defendant, her substitute teacher, for permission to go to the restroom to change to her gym shorts. She was wearing pants that had a three-inch hole in the inner thigh about halfway between her knee and her groin. When she showed the hole to defendant he put two fingers in it and rubbed in a circular motion. When T.M. returned to the classroom after changing her clothes defendant told her she “had nice legs” and “would look good as a supermodel.” Defendant instructed T.M. not to tell her parents what he had said to her.
In 2009 Tracy Davis, a prostitute and police confidential informant, got into defendant’s car and orally copulated him in exchange for payment. During the incident defendant, who had introduced himself as “Jerry, ” told Davis he was going to babysit a 10-year-old girl and “pop her cherry.” Davis orally copulated defendant three more times for money. During each of the four encounters defendant told Davis he wanted to have sex with a seven- to ten-year-old girl and asked her if she could find one for him, telling her he would pay her $50 if she did.
Concerned defendant would have sex with a girl, Davis told two different police officers about defendant’s requests. At the officers’ suggestion Davis called defendant and reminded him of his request she help him find a girl. He told her that it would be a felony to have sex with a young girl and he did not want to do so.
An undercover officer then began surveilling defendant. He followed defendant and his eight-year-old granddaughter, J.L., into a movie theater. The officer testified he saw defendant kiss J.L. four times during the movie. Once he saw J.L.’s dress more than halfway up her legs and defendant’s hand moving toward his lap. A second time defendant was looking at J.L.’s groin. Another officer observed that every time someone walked past defendant he sat up in his seat and put his hands in his lap. He also saw defendant put his hand on J.L.’s vaginal area three times, twice pinching it, among other conduct. J.L.’s dress was above her waist numerous times.
That same night officers arrived at defendant’s home to search it pursuant to a warrant. When defendant read it he whispered, “Fuck.” When police interviewed Robinson she told them about the 2001 incident at the school. Upon reviewing school records police saw reports as to T.M. and M.M, both of whom were interviewed.
DISCUSSION
1. Testimony of Davis
Defendant argues the court abused its discretion in allowing the testimony of Davis because it was irrelevant and more prejudicial than probative. Prior to trial he made a motion to exclude the testimony on those grounds. Specifically, he asserted there was no connection between Davis or his statements to her and the charged acts. He maintained the testimony would be more prejudicial than probative because the jury would hear he had had sex with a prostitute. Defendant also argued Davis’s statements were remote as to the acts charged involving T.M. and M.M. and could confuse jurors.
While not allowing all of the testimony the prosecution sought to introduce, the court ruled that some was relevant to the intent element of the crime for which defendant was charged. As to the Evidence Code section 352 objection, the court acknowledged the jury might be critical of defendant for using a prostitute. But it was not persuaded by the remoteness argument and found the testimony very probative of defendant’s intent to have sex with a child under 14. The court offered to give a limiting instruction that the evidence was to be considered only as to defendant’s intent. And it did so.
“A violation of [Penal Code] section 288[ subdivision] (a) requires ‘“any touching” of an underage child accomplished with the intent of arousing the sexual desires of either perpetrator or the child.’ [Citation.]” (People v. Lopez (2010) 185 Cal.App.4th 1220, 1229.) Direct proof of intent is rare. Thus, circumstantial evidence may be used. (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) “‘[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.’ [Citations.] Other relevant factors can include the defendant’s extrajudicial statements [citation]....” (People v. Martinez (1995) 11 Cal.4th 434, 445.)
Defendant argues Davis’s testimony is not relevant because, as to M.M. and T.M., his statements to Davis were remote and made several years after the alleged criminal acts occurred, and there is no evidence he was speaking about J.L. when he spoke of having sex with a 10-year-old. Consequently, they did not show intent to arouse his own desires or those of his victims. But if defendant was expressing interest in having sex with young girls years after, it was reasonable to infer that when he touched M.M. he had the same intent. The testimony had some “tendency in reason to prove” his intent (Evid. Code, § 210) and was relevant.
Likewise it was more probative than prejudicial. Under Evidence Code section 352, the trial court has the discretion to admit evidence that is relevant to prove a material fact as long as its probative value is not outweighed by its prejudicial effect. (People v. Daniels (1991) 52 Cal.3d 815, 856.) “‘Prejudice’ in the context of Evidence Code section 352 is not synonymous with ‘damaging’: it refers to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 188.) We review the trial court’s ruling for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.)
As support for his argument, defendant contends that there was no evidence corroborating Davis’s testimony. He asserts Davis’s credibility and motives for the testimony were questionable considering she was a paid informant and had a recent arrest for using another’s identity. Defendant did not agree to have her find a girl for him when she called him at officers’ request.
He also maintains M.M.’s version of events “appeared exaggerated and highly unlikely, ” pointing out that although she testified defendant touched her inner thigh, the officer who interviewed her testified that in showing him how defendant had touched her she touched the top of her thigh. Defendant highlights the lack of corroborating testimony by other students, claiming it was “illogical” for M.M. to call him back to her desk after the first time he touched her and her classmate. He concludes that based on these claims and M.M.’s distress on the stand, in addition to Davis’s testimony, “the jury felt as though [it] had to convict [him] of something.”
We are not persuaded. First, much of this argument is speculative without any evidentiary support. Second, the fact the jury hung on two counts shows any prejudicial effect of Davis’s testimony was not so great as to outweigh its probative value. Third, these claims go to the credibility of the other evidence, not the prejudicial effect of the disputed evidence. We do not agree the other evidence was weak. In addition to M.M.’s testimony, there was also the testimony of Knight that, when confronted with M.M.’s accusation, defendant did not immediately deny it but instead “sobb[ed].” This could be considered an admission by defendant. Further, even if other evidence is weak, that is “relevant to the question of prejudice if there were error, but it provides no reason to exclude this particularly probative evidence.” (People v. Loy (Jul. 7, 2011, S076175) __ Cal.4th __ [2011 WL 2638132, p. 12].) The court did not abuse its discretion in admitting Davis’s testimony.
2. Restitution
The presentencing probation report stated that M.M.’s mother requested restitution in the sum of $2,405 based on lost wages, gasoline, parking, and food in connection with the various hearings. At the sentencing hearing, despite defense counsel’s request that the court keep jurisdiction and set a future hearing date so he could obtain the documentation supporting the request, the court ordered restitution in the requested amount. Defendant argues he had the right to a hearing to challenge the amount and the Attorney General agrees. The parties are correct that defendant was entitled to a hearing (Pen. Code, § 1202.4, subd. (f)(1)) and the matter is remanded for the court to hold a hearing on the amount of restitution.
DISPOSITION
The victim restitution order is vacated and the judgment is otherwise affirmed. The matter is remanded to the trial court for the limited purpose of conducting a victim restitution hearing, after which the court shall amend the abstract of judgment, if necessary, to reflect the amount of victim restitution ordered. The trial court shall send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: BEDSWORTH, J., ARONSON, J.