Opinion
NOT TO BE PUBLISHED
Superior Court of Los Angeles County No. YA073314-01 Steven R. Van Sicklen, 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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Tito Richard Ruiz appeals a judgment following conviction of two counts of child molestation. (Pen. Code, § 288, subd. (a).) We affirm.
All further statutory references are to the Penal Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
For many years, Ruiz and his wife operated a day care business from their Hawthorne home. L.G., J.C., and N.P. were young girls placed in the care of the Ruizes by their parents.
From October 2007 through October 2008, six-year-old L.G. was at the Ruiz home. As she sat on the sofa one day, Ruiz touched her "boobies" with his hand and stated that she had "big bumps." L.G. informed her parents and later described Ruiz's act as "not nice" and "not polite." (Count 1.)
Four-year-old J.C. also attended day care at the Ruiz home. On one occasion, Ruiz touched her "privacy" over her clothing. J.C. referred to her vagina as her "privacy." (Count 2.)
On October 20, 2008, Los Angeles County Sheriff's Detective Rosalina Harris interviewed Ruiz. He admitted touching L.G. four or five times over her clothing because he was "just curious." He also explained that he touched her breast to push her away as he took his blood pressure and, on another occasion, as he tickled her. He also admitted touching J.C.'s vagina because he was "curious." Ruiz added that on two occasions, he touched six-year-old N.P.'s vagina (uncharged sexual conduct). He stated that he was relieved to have been "caught" because he would continue "doing it" otherwise. At trial, the prosecutor played a taped recording of Ruiz's police interview.
Ruiz testified that he touched J.C. to determine if she had urinated in her clothing. He stated that he touched L.G. and N.P. by accident, and that he did not become sexually aroused by touching the children.
The jury convicted Ruiz of two counts of child molestation. (§ 288, subd. (a).) The trial court sentenced him to six years midterm imprisonment for count 1, and two years midterm imprisonment for count 2, to be served consecutively. The court also imposed a $200 restitution fine, a suspended $200 parole revocation restitution fine, a $30 criminal conviction assessment, a $30 court security fee, and a $300 sex offender fine. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a)(1), 290.3; Gov. Code, § 70373.) The court awarded Ruiz 73 days of presentence custody credits.
Ruiz appeals and contends that evidence of his uncharged sexual acts against N.P. were unduly prejudicial, insufficiently probative, and violated principles of due process and equal protection of the law.
DISCUSSION
I.
Ruiz argues that the trial court abused its discretion by permitting evidence of his sexual acts against N.P. because it was unduly prejudicial and insufficiently probative. He points out that he admitted touching N.P.'s vaginal area under her clothing, rather than over her clothing as the other victims. He adds that the only evidence of the uncharged acts is his admission.
The Attorney General responds in part that Ruiz has forfeited this argument because he did not specifically object to evidence of the uncharged acts against N.P.
We reject the Attorney General's forfeiture argument and decide the matter on its merits. The record contains evidence that three minors with the first name N. attended the Ruiz day care center. Thus the prosecutor filed a written motion regarding uncharged acts against N.F., in his confession Ruiz admitted touching N.P., and victim J.C. testified that her sister N.C. also attended day care at the Ruiz home. The parties and the trial court may have confused evidence regarding at least two of the three minors. For this reason, we do not apply the forfeiture rule here.
Evidence Code section 1108, subdivision (a) 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."
In deciding whether to exclude evidence of an uncharged sexual offense pursuant to Evidence Code section 1108, the trial court should consider its nature, relevance, and possible remoteness; the degree of certainty of its commission; the likelihood of confusing or distracting the jury from its main inquiry; its similarity to the charged offense; its likely prejudicial impact; the burden on defendant in defending against the uncharged offense; and the availability of less prejudicial alternatives to its outright admission. (People v. Story (2009) 45 Cal.4th 1282, 1295.) We review the trial court's ruling for an abuse of discretion. (Ibid.)
The trial court did not abuse its discretion in admitting evidence of the uncharged sexual acts. The acts against N.P. were similar to those against L.G. and J.C., all children enrolled in Ruiz's day care. Ruiz admitted committing the acts against N.P. close in time to the commission of the charged sexual crimes. The uncharged acts evidence was probative to disprove Ruiz's explanation that he touched the girls accidentally or with an innocent purpose. (People v. Branch (2001) 91 Cal.App.4th 274, 282-283 [uncharged crimes evidence relevant to refute claim that defendant had touched victim in charged crime by accident].) Although he may have touched N.P. under her clothing, the act was similar to and no more inflammatory than the touching of L.G. and J.C. In sum, Ruiz did not establish that any potential prejudice would substantially outweigh the probative value of the uncharged crimes evidence or that he would be unduly prejudiced thereby. (Evid. Code, §§ 1108, 352.)
II.
Ruiz contends that evidence of the uncharged sexual crimes denied him due process and equal protection of the law. He acknowledges the decision of our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, but asserts that the decision is wrongly decided in view of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, reversed on other grounds in Woodford v. Garceau (2003) 538 U.S. 202. Ruiz contends that the protections afforded by Evidence Code section 352 are inadequate and illusory.
Ruiz's assertion is belied by the trial court's ruling excluding evidence of his sexual acts against D.H., committed approximately 40 years prior to trial.
As Ruiz concedes, our Supreme Court held in People v. Falsetta, supra, 21 Cal.4th 903, 917-918, that admissibility of evidence of a defendant's uncharged sexual crimes does not deny him due process of law. Falsetta also discussed with approval People v. Fitch (1997) 55 Cal.App.4th 172, 184-185, holding that admissibility of a defendant's uncharged sexual crimes does not deny him equal protection of the law. (Falsetta, at p. 918 [Legislature reasonably created exception to the propensity rule for sex crimes because of their serious nature and because they are committed secretly, resulting in trials that are credibility contests].) Pursuant to the rule of stare decisis, we reject Ruiz's constitutional claims. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of [our Supreme Court] are binding upon and must be followed by all the state courts of California"].)
Garceau v. Woodford, supra, 275 F.3d 769, does not assist Ruiz. There the court found that the admission of prior crimes evidence (drug manufacturing and murder) to establish propensity to commit murder was prejudicial error. (Id. at p. 777.) Garceau is factually distinguishable and does not involve Evidence Code section 1108. We are also not bound by decisions of lower federal courts. (People v. Gray (2005) 37 Cal.4th 168, 226.)
Moreover, United States v. Lemay (9th Cir. 2001) 260 F.3d 1018, 1030-1031, held that the federal evidentiary rule permitting evidence of prior acts of child molestation, unless their probative value is substantially outweighed by danger of unfair prejudice, does not violate principles of due process or equal protection of the law.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.