Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03284
MORRISON , J.
Defendant John Martin Steele was charged with three counts of lewd and lascivious conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The jury convicted defendant on count two and found him not guilty on the other two counts. The trial court sustained three prior prison term allegations and sentenced defendant to seven years in prison, plus a consecutive eight-month term for a conviction in a prior case.
On appeal, defendant contends the Multidisciplinary Interview Center (MDIC) interview was improperly admitted, the admission of prior sexual misconduct evidence was erroneously admitted, and the court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 370. We disagree and shall affirm.
BACKGROUND
Samantha V., born on May 15, 1993, was 13 years old at the time of trial. Defendant is her mother’s half brother by marriage, and Samantha calls him her uncle. She testified to three incidents involving defendant, all taking place at her mother’s house.
The Count One Testimony
One incident occurred in the morning in her mother’s living room when she was nine years old. While sleeping on the couch, Samantha was awakened by defendant touching her waist as he was lying beside her. Defendant was lying down beside her on the couch. Samantha had her clothes on and the touch felt like “rubbing up and down.” After Samantha got up and went to her room, defendant said she would not be going to catechism that morning. She remembered telling a police officer defendant touched her vaginal area with his fingers, and agreed this statement was true.
The Count Two Testimony
Samantha recalled a second incident that took place in the living room of her mother’s house when she was nine years old. She was lying down on a couch on her stomach, with a blanket over her. Defendant was lying on top of her, touching her “[i]n my private area” with his “hand.” Samantha’s pants were unbuttoned, and defendant was touching her private area, rubbing it with his hands over her underpants. After her brother, Mario, entered the room, defendant stood up and walked away. Mario had been in his bedroom before coming into the living room.
The Count Three Testimony
A third incident took place when Samantha was nine years old, in the living room during the day. Samantha had been outside the house crying because her mother had gone to the store and would not take her. Defendant picked Samantha up and brought her to the living room, where the television was on. He placed her in his lap, putting his hands around her waist and moving his lap around. Samantha then got up and walked away.
Samantha remembered telling a police officer she could feel something hard as she sat on defendant’s lap, and telling the officer, “I had my clothes on but I know it was his penis getting hard.” She agreed both statements were true. Samantha then remembered it got hard against “[m]y butt.”
Disclosure Testimony
At first, Samantha did not tell anyone about the incidents because she was scared no one would believe her, but she eventually told her adult sister, Monica. Monica wanted to find out why Samantha was having problems in school and told Samantha she had the same problems at Samantha’s age. Samantha then told Monica defendant touched her when she was little. Samantha was in seventh grade when she told her sister.
According to the police officer who interviewed her, Samantha said Monica asked if she had been molested, and before she could answer, Monica said defendant had molested her when she was eight years old. Samantha did not remember saying this to the officer.
The MDIC Interview
Samantha was given an MDIC interview on March 14, 2006.
A tape of the interview was admitted into evidence over defendant’s objection on hearsay (Evid. Code, § 352), due process, and Sixth Amendment grounds.
Samantha first told the MDIC interviewer defendant would come over to her house “at nighttime” and “touch me and stuff like that.” He used to “lay next to me and just feel on me and stuff.” Samantha had been getting into trouble at school, and, when her sister asked if she had been molested, Samantha started to cry and said, “Yes.” The sister asked who, and Samantha said, “Uncle Johnny.”
Defendant would molest Samantha when she was asleep on the living room couch. He would come over, lie next to her, “and start rubbing my thighs and stuff like that.” Samantha told the interviewer she would move around but would not get up as she was afraid defendant would “yank me down or something like that.”
This happened “like three times.” The first took place on a Sunday because she remembers missing her catechism class. Samantha could feel the pressure of defendant lying on her. She believed defendant’s “thing was out [of] his pants.” She woke up and told defendant, “we got to get dressed, we’re gonna go to catechism,” but defendant “was like, no, go back to bed cuz your mom said that you’re not going and stuff like that.”
Samantha told the interviewer she felt her legs spread out and something on her. “I don’t know if it was his hand or if it was, you know, his little thing or if it was his private, that -- um, that was like set on me, but I could feel like something right there, but I don’t know what it was.” Defendant was rubbing up and down on top of her clothes and the blanket, and she felt something “like kind of like my thigh.” She was not sure what was on her thigh.
As for the count two incident, Samantha “woke up and my pants were unbuttoned and stuff like that, and I was scared.” Her brother, Mario, and his girlfriend, were in the house that day, sleeping in Mario’s room. Mario then came into the room and defendant “popped up really fast” and started talking with him. Mario asked defendant what he was doing, and defendant replied he was doing nothing.
This particular incident took place at night. According to Samantha: “I was laying on the couch. Uh. I was sleeping when he came and when I had woke up in the middle of my sleep, and that’s when like my pants were unbuttoned, and I was laying on my stomach, and my face was like facing the -- like the wall of the couch.” All she knew was that defendant “was just like feeling on my thighs.”
Samantha later told the MDIC interviewer she felt his hands on her skin against her thighs. Both her underwear and her pants were down. Samantha also told the interviewer defendant had one hand on her thigh, and the other “touching my private.”
This incident took place on a different living room couch, a longer one than the couch she was on during the first incident. Her brother and his girlfriend were in the house, sleeping in the brother’s room.
About one week separated the first two incidents, and Samantha was around nine years old at the time. She could not recall when the third incident happened relative to the other two.
The third incident involved the time Samantha was crying because her mother would not let her go shopping. Samantha told the interviewer defendant “picked me up, like he picked me up and -- and tells me, get in the house and stuff.” Defendant put Samantha “like on his lap, and put his hand like right here.” As defendant flipped through the television channels, she “could kind of feel his -- his private part like -- like moving. I don’t know if it was like moving or going up or something, but I kind of felt it going against my leg, and then I got up, and I went in the backyard and played with the dogs.” Samantha also said defendant put his hand on her thigh and she “could feel his private part like kind of going up or whatever” against her “butt.”
Cross-examination
On cross-examination, Samantha did not remember the reference to the longer couch in the MDIC interview, but admitted there were two different couches in the living room. As to the incident in which her brother entered the living room, Samantha admitted she was sleeping on a different couch than during the thigh incident. Samantha did not remember telling the MDIC interviewer her underwear was down during the incident where her brother walked in, and she denied that her underwear was down during this incident.
Samantha admitted saying at different points in the MDIC interview that defendant touched her thigh and private part during the second incident, and said both statements were true. She recalled telling the MDIC interviewer she thought defendant’s penis was out of his pants, but did not know if it really happened.
According to the officer who interviewed her, Samantha said that during the second incident defendant grabbed her hand and tried to put it on his “dick,” but stopped and got off of her after Samantha’s brother walked in. At trial, Samantha denied making the statement to the officer, declaring that defendant never put her hand on his penis. She never saw defendant’s penis come out of his pants during any of the three incidents.
Uncharged Sex Crimes Evidence
Monica M., age 28, is Samantha’s sister and defendant’s niece. She went out to pizza with Samantha one day because Samantha was having anger issues with their mother, just as she did when she was Samantha’s age. Monica told Samantha the reason she had been so angry then was because she had been molested as a little girl. Samantha then broke down crying and said the same thing had happened to her. Monica asked Samantha who molested her, and Samantha said it was defendant.
Monica testified to two incidents where defendant molested her, taking place between the ages of eight and 10. The first took place at her grandparents’ house, where she was sleeping on the floor of the living room with the rest of the grandchildren. Monica woke up as she felt her blankets being pulled off and found defendant on top of her, trying to force her legs open by putting his hand between her knees.
Defendant succeeded, opening Monica’s knees and pulling down her underwear. According to Monica, “He was on top of me. He was just like moving up and down.” Defendant held himself up with one hand so his full weight was not on Monica. He never penetrated her with his penis, but Monica could feel it against the skin of her vaginal area. Someone else entered the room, causing defendant to stop, get up, and leave. Defendant ejaculated at some point.
The other incident was not far apart from the first. It happened at defendant’s apartment, where Monica was sleeping on the floor of the front room. She believes two other children were sleeping on the floor and an adult was asleep on the couch. Defendant forced himself on top of Monica, and pulled her pants and underwear down. His penis rubbed against her vagina. This lasted a few minutes.
Sabrina L., age 29, testified to an incident during April 1989. She was babysitting for defendant’s wife, April, at their house. She was 11 years old at the time.
Sabrina, defendant, and the children slept on the living room floor, while April was in bed in her own room. Sabrina was awakened by defendant rubbing her vagina over her clothing. Sabrina turned and saw defendant, who then stopped and acted as if he were sleeping. Sabrina got up, went to the bathroom, and returned to the living room, sitting on the couch to avoid being next to defendant.
Sabrina was scared then, “Because at the same time I felt like maybe he didn’t touch me. Maybe it was in my head. I don’t know.” She thinks the incident took place around 6:00 a.m.
Michelle M., age 31, also testified. Defendant was married to her aunt, April. When she was 11 or 12 years old, defendant molested her when she was visiting her aunt. Defendant would “touch” Michelle on her upper body and breasts.
Once, Michelle was sleeping on the floor downstairs at her grandmother’s house, woke up, and found her pants undone and defendant touching her breasts. She had not undone her pants, which were buttoned up when she went to sleep.
Michelle later said the touching of her breasts and unbuttoning of her pants were two separate incidents.
Defendant’s Testimony
Defendant testified on his own behalf. He was convicted of vehicle theft and burglary in 1995 and felony vandalism in 2004. From the middle 1990’s until his marriage in 2003, defendant would spend a lot of time at his sister’s. He was addicted to heroin and methamphetamine during this time. Samantha’s mother and her children were mad at defendant because friends of his son beat up her son.
Defendant recalled the lap incident with Samantha. Samantha was crying because she could not go to a teacher’s meeting with her mother and defendant tried to console her. Samantha would not comply with her mother’s requests to go inside, so defendant went outside and brought her inside the house.
Defendant put his hand out and Samantha voluntarily sat on his lap. She was sitting in what defendant thought was an inappropriate position, so he moved her to his knee. After defendant consoled her, Samantha eventually stopped crying and got up to go outside and play with her nieces. Defendant had no erection while she was sitting on his lap.
Defendant stated it would be impossible for him to lie down on the short couch beside Samantha because he is too tall. As to the count two incident, defendant remembers shooting up heroin after getting back late from work and falling asleep on the couch. Mario walked in and asked defendant what he was doing. Defendant sat up and told Mario he was doing nothing and then went back to sleep. He denied ever improperly touching Samantha. Defendant is six feet tall, and at the time of the events related by Samantha, he weighed about 180 to 190 pounds.
Defendant did not recall any incident with Monica M., and defendant does not remember ever being alone with her. He denied ever molesting her. He also denied ever touching Michelle M. or Sabrina L. in an inappropriate manner.
DISCUSSION
I
Defendant asserts the MDIC interview was not admissible under Evidence Code section 1360, because when Samantha was interviewed, she was too old for her interview to qualify under the statute. The People correctly concede the trial court’s error.
Defendant objected to the MDIC interview on the grounds it should be excluded “as inadmissible hearsay and pursuant to Evidence Code section 352.” The court also granted defendant’s motion to deem all hearsay and section 352 objections to also include due process and confrontation claims. Defendant never raised the fact that Samantha was too old under the statute as a ground for his objection. Since the People have not asserted forfeiture of this claim, and in order to avoid a claim of ineffective assistance of counsel on habeas corpus, we shall address the claim on the merits.
The trial court admitted the tape of the MDIC interview pursuant to Evidence Code section 1360. Evidence Code section 1360 creates an exception to the hearsay rule for certain recorded statements in criminal prosecutions “where the victim is a minor” and the statement is “made by the victim when under the age of 12 describing any act of child abuse . . . performed with or on the child by another, . . .” (Evid. Code, § 1360, subd. (a).) Samantha was 12 years old when she gave the MDIC interview. As the trial court and both parties should have known, Samantha’s interview was plainly inadmissible under this provision because she was too old when interviewed.
The People contend the error was harmless. We agree.
Defendant was charged with a separate violation of Penal Code section 288, subdivision (a) with respect to all three incidents alleged by Samantha -- the thigh-touching incident (count one), the incident in which defendant touched her “private” through her underwear (count two), and the incident on defendant’s lap (count three). The jury acquitted defendant on the first and third counts, and convicted him on count two.
Defendant’s contention that the MDIC evidence violated his rights to due process and confrontation is without merit. With respect to the confrontation clause claim, the Supreme Court has declared “[t]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [158 L.Ed.2d 177, 198, fn. 9].) Since Samantha, the declarant in the MDIC interview, testified, the admission of the MDIC evidence did not violate defendant’s right to confrontation.
Nor did the evidence violate defendant’s right to due process. “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) As we shall explain, the evidence relating to count two in the MDIC interview was largely cumulative and not significantly more detailed or lurid than other properly admitted evidence. The trial court’s error thus did not render defendant’s trial fundamentally unfair.
Since the improper admission of the MDIC interview “violated a state statute alone, we apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, and reverse only if there is a reasonable probability of a result more favorable to the defendant in the absence of the error. [Citation.]” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373.)
We are not convinced defendant would have obtained a more favorable result had the MDIC interview not been admitted. With respect to count two, the MDIC testimony was essentially cumulative to Samantha’s trial testimony and her statements to the police. In Samantha’s trial testimony, she states she was sleeping on the couch in the living room, but woke up to find her pants unbuttoned and defendant lying on top of her. Defendant was touching her “private area,” rubbing it with his hands over her underpants. Defendant stopped, got up, and walked away when Samantha’s brother Mario entered the room.
The MDIC interview follows this outline but adds other details -- the incident took place at night, Samantha’s underwear was down, she could feel defendant’s hand on her skin, defendant had one hand on her thigh and the other “touching my private,” and this took place about one week after the first incident. Samantha also stated in the MDIC interview that this incident took place on a longer couch than the one in the thigh-touching incident.
The MDIC interview was also used by the defense to provide prior inconsistent statements which were brought out on cross-examination. Samantha did not remember telling the MDIC interviewer there were different sized couches in the living room, but admitted the Mario incident took place on a longer couch than the thigh incident. She did not remember telling the interviewer that defendant pulled her underpants down during the Mario incident, and Samantha denied that this ever took place.
On cross-examination, Samantha remembered telling the MDIC interviewer defendant touched both her thigh and private part and declared that both statements were true. She also remembered telling the interviewer she thought that defendant’s penis was out of his pants, but was now unsure whether this actually happened.
Samantha’s statement to the officer regarding the count two incident provided a detail not found in the MDIC interview --defendant tried to put her hands on his penis just as her brother walked into the room, and, as in the MDIC interview, that defendant “pulled my pants down and was touching my vagina with his fingers.” On cross-examination, Samantha denied making this statement and declared she never saw defendant’s penis come out of his pants.
The differences between the MDIC interview and the properly admitted testimony of Samantha and her statements to the police did not prejudice defendant. The properly admitted evidence was more than sufficient to convict defendant, and the most prejudicial details of the MDIC interview, defendant pulling down Samantha’s pants and touching her vagina, were both denied by Samantha on cross-examination and properly admitted through her statements to the police. Other details provided by the interview, such as defendant touching her thigh, and the incident taking place on a different couch, were comparatively minor, particularly in light of her statement in the police interview that defendant put her hand on his penis.
Defendant also asserts the prosecution placed heavy reliance on the MDIC interview, calling it “crucial,” “the most thorough testimony you have in this case,” and the “most specific interview that took place” in the closing argument, along with referring to the interview several other times in the closing argument. However, the prosecution also argued Samantha’s “memory is for matters is what’s key on direct and cross, on the MDIC tapes, and to Officer Cook. It’s all the same stuff.” Based on this record, we do not find the prosecution overemphasized the MDIC interview relative to the other evidence.
We therefore conclude it was not more likely defendant would get a more favorable result had the MDIC evidence not been admitted.
II
Defendant contends the admission of prior sexual misconduct evidence pursuant to Evidence Code section 1108 violates Evidence Code section 352, and Evidence Code section 1108 violates due process. We disagree.
Evidence of a person’s character or trait of character is generally inadmissible to prove the person’s propensity to commit such conduct on a specific occasion. (Evid. Code, § 1101, subd. (a); Falsetta, supra, 21 Cal.4th at p. 913.) An exception to the rule exists when evidence of an uncharged offense is relevant to prove a fact such as motive, intent, common plan, identity, or absence of mistake or accident, other than disposition to commit the act. (Evid. Code, § 1101, subd. (b).)
Evidence Code section 1108, subdivision (a), states an additional and broader exception to the general rule by allowing propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 907.) The section provides: “[i]n 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 made inadmissible pursuant to Section 352.”
By enacting Evidence Code section 1108, the Legislature found “evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) Thus, Evidence Code section 1108 makes propensity evidence presumptively admissible subject to the limitation stated in Evidence Code section 352.
The Supreme Court in Falsetta upheld Evidence Code section 1108 against a due process challenge. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) We are bound to follow this decision and accordingly reject defendant’s due process claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In upholding Evidence Code section 1108 against a due process challenge, the court in Falsetta considered the basic reasons for excluding evidence of uncharged offenses, namely that such evidence may (1) place an undue burden on the defense to defend against uncharged offenses, (2) create judicial inefficiency by requiring mini trials on uncharged offenses that may sidetrack the jury, and (3) cause undue prejudice to the defendant. (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
The prejudice or damage to be avoided is not that which naturally flows from relevant, highly probative evidence, but from evidence that “tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” (People v. Karis (1988) 46 Cal.3d 612, 638.) We review the trial court’s ruling for abuse of discretion. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
In People v. Harris (1998) 60 Cal.App.4th 727, this court identified the following factors relevant to the question whether prior sexual offense evidence should be excluded as unduly prejudicial under section 352: (1) The inflammatory nature of the evidence; (2) the probability of confusing the jury with the evidence; (3) the remoteness of the prior offenses; (4) whether introduction of the evidence would involve an undue consumption of time; and (5) the probative value of the evidence. (Id. at pp. 737-741.)
“[T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
The uncharged and charged offenses are significantly similar. All involved molestations by defendant against girls under the age of 14. Samantha was about nine years old, Monica was between eight and 10 years old, Sabrina was 11 years old, and Michelle was between 11 and 12 years old, when defendant molested them. The acts took place when the girls were sleeping, and, with the exception of one incident involving Monica, no adults were present. Defendant was in a position of trust over the girls, being Samantha and Monica’s uncle, the husband of Michelle’s aunt, and employing Sabrina to babysit his children.
The acts were also similar, primarily involving defendant improperly touching or fondling his victims. Although Monica’s testimony involved defendant pulling down her underwear and having his penis against her skin, this is not significantly more lurid than Samantha’s police statement, which has defendant pulling down her underwear, touching her vagina, and trying to put her hand on his penis.
The evidence is highly probative, showing both propensity and a common scheme. Nor does the evidence unduly consume the jury’s time. The witnesses had no difficulty remembering the incidents, and there was no mini trial over the uncharged sexual offenses. As we have already explained, the uncharged crimes evidence was not more inflammatory than the evidence of the charged crimes.
Two factors weigh in favor of exclusion. There was some risk of confusing the issue, since defendant was never punished for the uncharged offenses. (Harris, supra, 60 Cal.App.4th at pp. 738-739.) Also, the offenses were remote. The incident involving Michelle took place around 1988 or 1989, Sabrina’s took place in 1989, and Monica, who was born in 1978, said she was molested between the ages of eight and 10.
We review a trial court determination under Evidence Code section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.) “A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
Under the circumstances presented here, we cannot say the trial court abused its discretion in admitting the prior offense evidence under Evidence Code section 1108. The offenses were of a similar nature to the charged offenses and were not more inflammatory. Although the uncharged offenses were remote and unpunished, the witnesses’ stories were consistent with each other and with the victim’s testimony. There was little danger that defendant was prejudiced, within the meaning of Evidence Code section 352, by introduction of this presumptively admissible, highly probative evidence.
III
Defendant asserts it was error for the trial court to instruct the jury with CALCRIM No. 370. He is mistaken.
CALCRIM No. 370, as given by the trial court, reads as follows:
“The People are not required to prove that defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether defendant had a motive.
“Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show defendant is not guilty.”
This instruction accurately and clearly describes the law. “Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.)
Relying on People v. Martinez (1995) 11 Cal.4th 434 (Martinez), and People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer), defendant asserts motive is an element of lewd and lascivious conduct upon a child under the age of 14. He argues the instruction was error because it risked confusing the jury over an element of the crime. He is wrong.
In Martinez, the Supreme Court “granted review for the limited purpose of determining the acts necessary to sustain a conviction under Penal Code section 288.” (Martinez, supra, 11 Cal.4th at p. 438.) The court determined a conviction can be supported when the accused touches the victim in a manner not inherently lewd so long as the appropriate mental element accompanies the touching. (Id. at p. 442.) The Supreme Court concluded, “Section 288 is violated by ‘any touching’ of an underage child committed with the intent to sexually arouse either the defendant or the child.” (Ibid.)
Although Martinez does, as defendant points out, use motive and intent interchangeably in passages discussing Penal Code section 288 (see Martinez, supra, 11 Cal.4th at pp. 449-450, 452), the decision did not hold that motive was the element of section 288. If motive was an element to defendant’s crime, then one would expect it to be in the statutory language. No mention of motive is made in Penal Code section 288. We conclude that motive is not an element of Penal Code section 288.
Maurer is readily distinguished. In that case, “the defendant was convicted of misdemeanor child annoyance under section 647.6. To prove the mental state element of the offense, the prosecution had to show that the defendant’s conduct was motivated by an unnatural or abnormal sexual interest. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1135.) Where motive is not an element of the crime, and motive and the mental element are not used interchangeably in the jury instructions, it is not error to give the motive instruction. (Ibid. [upholding the motive instruction of CALJIC No. 2.51].) Since motive is not an element of Penal Code section 288, the trial court did not err in giving CALCRIM No. 370.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., ROBIE , J.