Opinion
F051526
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. LEONARD POLIN SIMENTAL, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Leonard Polin Simental molested girls as he pretended to pray for them or baptize them. On appeal, he challenges for various reasons the admission under Evidence Code section 1108 of evidence of his prior sex acts. We reject his contentions and affirm.
All statutory references are to the Evidence Code unless otherwise noted.
PROCEDURAL SUMMARY
On September 1, 2005, the Kern County District Attorney charged defendant with four counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). As to each count, the information further alleged defendant committed an offense against more than one victim (Pen. Code, § 667.61, subd. (c)); that he had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and that he had a serious prior felony conviction (Pen. Code, § 667, subd. (a)).
After the prosecutor dismissed count 4, the jury found defendant guilty as charged on count 1. The jury deadlocked on count 2, which was later dismissed. On count 3, the jury found defendant guilty of the lesser included offense of assault (Pen. Code, § 240). The jury found the multiple victim allegation true as to counts 1 and 3. The trial court found the remaining allegations true as to counts 1 and 3.
The trial court granted defendants motion to strike the prior conviction, and sentenced defendant to 13 years in prison, as follows: eight years for count 1, plus five years for the serious felony conviction allegation, and 180 days for count 3, to be served concurrently.
FACTS
Count 1 — SW
In September 2004, 12-year-old SW and her family attended a church barbeque. SW told defendant, often called Pastor Leonard, that she had not won a backpack at the raffle. SW knew who defendant was, but she had never spoken to him before that afternoon. He told her to come to his house. When she did, he gave her a backpack. She told him her birthday was coming up and he told her he would give her a present if she came to his house again.
The next evening, SW told her parents she was going to defendants house. When she got there, he opened the door, let her in and handed her a black bag containing a radio, a chain, a wallet, a few dollars and some other items. He invited her in and locked the door behind her. Then he took the bag away and led her to his bed. He told her to sit down. He knelt down by her and told her he had oil for praying. He put some oil on his hands and started praying over SW. He dabbed the oil on her scars and blisters and on her forehead. He told her the oil would help her on the way home and the angels would watch over her when the dogs bit her. Then he put his hands on her shoulders and moved her onto her back so she was lying down with her legs hanging over the bed. He pushed her legs apart, pushed her shorts and panties aside, and touched her vaginal area.
SW was confused. She thought defendant was praying and performing some kind of religion. But she got scared and got up off the bed. She pushed him away, picked up the black bag and unlocked the door. Defendant tried to convince her to go out the back door, but she ran out the front. She ran three or four blocks to her house and saw her mother on the front porch. SW threw the bag over the fence surrounding her yard, then climbed over herself. Her mother saw her crying and asked what was wrong. SW told her mother what had happened and they called the police.
Counts 2 and 3 — RR
Defendant often approached RRs mother to engage her in conversations about God and the church. RRs mother saw defendant at church and on the street. She trusted him because he was always praying and talking about God.
RR was about 11 years old. She had epilepsy and her mother did not want to leave her at home alone. Because RRs mother left the house early to work in the fields, she asked defendant if he would watch RR in the mornings until she left for school. Defendant agreed, and came to the house in the mornings before RR woke up.
One morning when RR was still in bed, she woke up because defendant had his fingers inside her vagina. When he realized she was awake, he got up and left. RR never told her mother what defendant had done.
On another occasion, RRs mother took RR to defendants house so he could pray over RR. Defendant lived in a garage, where he also kept a "prayer box," a cardboard box large enough to hold two people, with a curtain-covered opening. Defendant and RRs mother went into the prayer box to pray. RR could hear defendant praying inside. When they came out, defendant and RR entered the box. As defendant prayed for RR, he reached up under her dress and touched her chest, then he reached down and tried to touch her vagina. He put oil on her body. RR moved around and pushed his hands away, trying to get him to stop touching her. He continued to pray aloud. RRs mother noticed all the movement inside the box and wondered if RR was having a seizure. On the way home, RR told her mother what defendant had done in the box.
The police recruited SW to make pretext telephone calls to defendant. In those calls, played for the jury, SW accused him of touching her private part with oil while he prayed over her. He repeatedly denied doing so.
On October 22, 2004, the police went to defendants home. During the interview, defendant denied, among other things, ever having any children in his home alone or giving SW a birthday present. When the police confronted him with contradictory facts, defendant admitted some were true, but he repeatedly denied touching SWs vaginal area. He told the police he recently had been acquitted of child molestation charges.
Evidence of Prior Sex Offenses
JM
In 1999, MR was defendants neighbor. When either she or her eight-year-old daughter, JM, were out in the yard, defendant would drop his pants, expose himself to them and masturbate. This happened almost every day. Another neighbor also witnessed this behavior. When the police refused to do anything, MR and JM stayed with a friend.
TV and CS
In 2002, JFs children, CS, TV and their brother, would play with some neighborhood children, who were defendants nieces and nephews. JF allowed her children to go with them down the street to the church. They often went to the church after school to color pictures and talk about God.
More than once, defendant called CS into another room and showed her how to be baptized. He leaned her back and told her to pretend she was underwater. While he held her, he put his hand under her shorts and underwear and touched her vaginal area. CS felt embarrassed and scared, so she kept the incidents to herself.
Defendant would also touch CSs sister, TV. When she sat on his lap to pick out a picture to color, he put his fingers up her shorts and touched her vaginal area.
In early 2003, CS insisted on living with her grandmother in another city. TV and her brother continued to go to the church. On May 28, 2003, they asked JFs permission to go to a special event at the church. They went, but almost immediately came running back to the apartment. TV told her mother she was scared because she saw defendant through a window. Her mother asked her why that would scare her and she said it was a secret. She whispered that defendant had been putting his hands up her shorts and touching her vaginal area.
JF immediately called CS at her grandmothers house and asked her if anyone had ever touched her inappropriately. CS was quiet, then asked JF to promise not to tell anyone. CS went into the bathroom for privacy, then told her mother that defendant had touched her bottom and her vaginal area. JF called the police.
The parties stipulated that defendant had been acquitted of six counts of violating Penal Code section 288, subdivision (a) based on charges involving CS and TV.
Defense Evidence
Defendant presented testimony to impeach the credibility and character of SW and RR. He also presented witnesses who attested to his character and reputation as a man of God and a helpful neighbor. Defendant testified he had become a Christian after he was incarcerated in 1993 for burglary. He explained that RR stumbled as she entered the prayer box. He denied touching SWs vaginal area.
DISCUSSION
I. Section 352
Defendant argues that the trial court abused its discretion under section 352 when it admitted evidence of defendants prior acts against JM, TV and CS. We disagree.
Although evidence of a defendants propensity or disposition is generally not admissible, in 1995 the Legislature enacted section 1108 to expand the admissibility of propensity evidence in sex offense cases. (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Section 1108 provides that evidence of a defendants commission of another sexual offense is admissible in a criminal action in which the defendant is accused of a sexual offense. Such evidence allows jurors to infer both that the defendant has a predisposition to commit sex offenses and that as a result of this predisposition he was likely to commit and did commit the charged sex offense. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.)
Section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
However, the admission of propensity evidence under section 1108 is subject to the courts weighing process under section 352, which "provides a safeguard against undue prejudice." (People v. Johnson (2000) 77 Cal.App.4th 410, 420.) Section 352 provides that the court has the discretion to exclude relevant evidence if its probative value is outweighed by the probability that its admission will consume an undue amount of time or would create a substantial danger of undue prejudice, of confusing the issues or of misleading the jury. Prejudice in the context of section 352 means "`evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]" (People v. Scheid (1997) 16 Cal.4th 1, 19.) "Painting a person faithfully is not, of itself, unfair." (People v. Harris (1998) 60 Cal.App.4th 727, 737.)
"Review of a trial court decision pursuant to ... section 352 is subject to abuse of discretion analysis. [Citations.] `The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules.... [Citation.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) We will not disturb the trial courts exercise of its broad discretion under section 352 unless the courts decision was arbitrary, capricious, patently absurd or exceeding the bounds of reason, all circumstances considered. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314; People v. Giminez (1975) 14 Cal.3d 68, 72.)
After reviewing the record in this case, we see no abuse of discretion in the trial courts admission of evidence of defendants prior sex offenses. We do not agree that the likelihood of confusion was great or the time taken was excessive. The evidence was presented in a clear manner and the number of witnesses did not confuse the issues of evidence whatsoever. Most of the prior offenses were highly similar to the charged offenses, demonstrating defendants propensity for touching young girls as he pretended to pray for, baptize or supervise them. Although the masturbation offenses were less similar, they also demonstrated defendants inappropriate sexual behavior toward children because he often performed the acts in front of eight-year-old JM. Furthermore, complete similarity is not required (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 [charged and uncharged crimes need not be sufficiently similar that evidence of latter would be admissible under § 1101; otherwise § 1108 would serve no purpose]); any dissimilarities went to the weight, not the admissibility, of the testimony regarding those acts. As for the offenses of which defendant had been acquitted, the jury was informed of those acquittals and thus had the information with which to weigh the evidence. As we explain below, such evidence is admissible under those circumstances. (People v. Mullens (2004) 119 Cal.App.4th 648, 662-663.)
Lastly, the record does not support the argument that the jury may have felt the need to punish defendant for prior acts for which he had gone unpunished (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [a jury may be tempted to punish a defendant for past crimes for which he has gone unpunished]). In fact, the jurys deadlock on count 2 suggests the jury did not automatically convict defendant because of his prior offenses, but instead based its decisions on an objective evaluation of the evidence in light of the instructions given. Moreover, any risk that the jury might be tempted to punish him for prior offenses regardless of whether it determined he was guilty of the charged offenses was counterbalanced by the instructions on reasonable doubt (CALJIC No. 2.90), the necessary proof of each element of the charged offenses (CALJIC Nos. 2.72, 9.00, 10.41), and the prohibition against convicting defendant of any crime with which he was not charged (CALJIC Nos. 2.50.1, 2.50.01, 10.44). (See People v. Frazier, supra, 89 Cal.App.4th at p. 42.) We presume the jury understood and followed these instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
Nevertheless, even if the trial court erred in admitting evidence of the prior sex offenses, that error was harmless because it is not reasonably probable that a more favorable result would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against appellant was very strong. After defendant touched SW, she became frightened and ran directly home. She ran crying to her mother, who was outside, and told her what had just happened. When defendant touched RR in the prayer box, RRs mother observed the unusual movements inside the box as RR pushed defendant away and removed his hands from under her dress. The box moved so much that RRs mother believed RR might be having a seizure. In light of these facts, any error was harmless.
II. Acquitted Charges
Defendant contends the trial court erred by admitting evidence of prior acts against TV and CS of which he had been tried and acquitted. Defendant acknowledges this issue has been decided against him in People v. Mullens, supra, 119 Cal.App.4th at pages 662 through 663. For the reasons explained in that case, we reject defendants contention.
III. Due Process
Conceding the Supreme Court has upheld the constitutionality of section 1108, defendant raises a due process challenge to preserve it for federal purposes. We, of course, are bound to follow People v. Falsetta, supra, 21 Cal.4th 903. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur:
Wiseman, Acting P.J.
Levy, J.