Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF137169, Patrick F. Magers, Judge.
Marylou Hillberg, 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 Jennifer A. Jadovitz, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of two counts of attempt to commit a lewd and lascivious act with a child under the age of 14 years (Pen. Code, §§ 664, 288, subd. (a)) (counts 1 & 2); three counts of unlawful contact or communication with a minor (§ 288.3, subd. (a)) (counts 3, 4, & 5); and three counts of willfully and unlawfully annoying and molesting a child under the age of 18 years (§ 647.6, subd. (a)) (counts 6, 7, & 8). Defendant was sentenced to a total term of two years six months in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant was sentenced to county jail with credit for time served for his misdemeanor convictions in counts 6, 7, and 8.
Defendant’s sole contention on appeal is that the trial court erred in admitting evidence of his prior uncharged conduct pursuant to Evidence Code section 1101, subdivision (b). We find no error and will affirm the judgment.
I
FACTUAL BACKGROUND
A. Counts 1-4, 6, and 7
On January 10, 2007, two girls, both around 10 years of age at the time, were approached by defendant as they walked to school in the morning. Defendant drove his car next to the girls and pulled over to the curb where they walked. He waved money at them and pointed for them to come over to him. He said nothing to the girls, but looked as though he was trying to open the passenger door so that they could get into his car. One of the girls took her cellular telephone out and defendant drove off. Both girls then ran to their school and told their principal.
B. Counts 5 and 8
On or about that same day in January 2007, defendant approached a 17-year-old girl as she walked to her high school and offered her $100 to let him do what he wanted with her. Defendant took out his wallet and showed her his money. The girl walked away from defendant; he followed her to a convenience store. He got out of his car and offered more money to the girl—first $200, then $300 for her to orally copulate him. Defendant stood very close to the girl; she was scared. A schoolmate driving by saw this exchange and offered the girl a ride to school.
On January 17, 2007, Detective Andy Bryant of the Corona Police Department, who was investigating the instant crimes, was informed that defendant had been apprehended. The victims positively identified defendant as the perpetrator of the crimes in an in-field lineup. Defendant was transported to the police department, where he waived his constitutional rights.
The interview was recorded. The audio tape of the interview was played for the jury and the jurors were also provided with a transcript of the interview.
Defendant initially denied his involvement in the crimes. He denied approaching the girls in his car, or showing them any money, or asking them to come talk to him. He also denied exposing himself to an older woman. He stated that he “never touched anybody.” Eventually, however, defendant admitted that he had approached the girls and offered them money because he was under the influence of methamphetamine. He admitted that he expected the girls to come to him if he waved money at them. He did not know what would happen if they came to him, but later admitted he thought they would possibly have sex with him. He claimed that he did not know the ages of the girls, but admitted that he had hoped the little girls would have sex with him when he waved them over. Defendant also admitted to doing “the same thing to another person” after he left the little girls. He admitted to approaching the 17-year-old girl and twice offering her money for oral sex. He also admitted that he had showed his penis to an adult woman.
C. Evidence of Prior Uncharged Conduct
On the same morning of these incidents, January 10, 2007, defendant admitted to driving up to an adult woman sitting in her pickup truck. When the woman turned her head, she noticed defendant smiling at her and pointing down to his lap. When the woman looked down, she could see defendant’s penis and he was masturbating. The woman quickly looked away, made sure her doors were locked, and sped away.
The record shows that the adult woman did not positively identify defendant; however, defendant does not dispute that he was the person who committed this offense and it is consistent with his admission during his interview with the police.
II
DISCUSSION
Prior to trial, the court heard arguments regarding the prosecutor’s offer of proof pursuant to Evidence Code sections 1108 and 1101, subdivision (b). The prosecutor offered evidence of defendant’s uncharged crime, i.e., wherein defendant drove his car up to the adult woman and exposed himself while masturbating. Regarding Evidence Code section 1101, subdivision (b), the prosecutor stated, “I believe it goes directly towards [defendant’s] intent, because it shows what was on his mind that day. Well, you know, people can just wonder why he’s showing money and chasing girls, but just on the same day he’s masturbating in front of other women.” The prosecutor acknowledged the age difference between the victims of the charged and uncharged crimes, then pointed out that “intent has to have the least amount of similarity under [Evidence Code section] 1101[, subdivision] (b).” The trial court agreed and stated, “based upon your offer of proof, it would be relevant with regards to his mental state.”
Defense counsel argued that the uncharged conduct was “totally different” from the charged conduct. The court agreed that the conduct was different, but concluded that the issue of defendant’s mental state as to all of the conduct was consistent. In response, defense counsel asserted that intent was not an issue in this case because during his interview with police, defendant told the officers what was on his mind when he showed the girls the money and, therefore, admission of the uncharged conduct was prejudicial under Evidence Code section 352. The prosecutor replied that although the evidence may be prejudicial, as it would damage defendant’s case, any prejudice was outweighed by the probative value of what defendant may have been thinking while he was driving around that day. In conclusion, the court permitted the challenged evidence under Evidence Code section 1101, subdivision (b). Defendant argues this was in error.
“Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant ‘when offered to prove his or her conduct on a specified occasion.’ Subdivision (b) of the statute, however, provides that such evidence is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .).’ To be admissible to show intent, ‘the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.’ [Citations.] Moreover, to be admissible, such evidence ‘“‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’”’” (People v. Cole (2004) 33 Cal.4th 1158, 1194.) “Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]” (Id. at p. 1195.) The trial court’s ruling on this matter is reviewed for abuse of discretion. (Ibid.)
In short, “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Defendant essentially does not challenge the trial court’s ruling under Evidence Code section 1101, subdivision (b), namely, that defendant’s prior misconduct was relevant to the issue of intent. Rather, he contends only that the evidence was unnecessary to establish intent and, thus, its potential for prejudice clearly outweighed its probative value under Evidence Code section 352. He points to his statements to the police that he had admitted his intent was sexual when he approached the girls. He thus claims intent was “not at issue.”
We disagree. In People v. Daniels (1991) 52 Cal.3d 815, 856-858 (Daniels), the court rejected a similar challenge under Evidence Code sections 1101 and 352 regarding prior misconduct evidence to establish motive and intent. The Daniels court explained that a plea of not guilty puts all the elements of the crime in issue for the purpose of deciding the admissibility of evidence unless the defendant has taken some action—for example, a concession on an issue—that narrows the prosecutor’s burden of proof. (Daniels, at pp. 856-858.)
Here, defendant offered no concession regarding intent as an element of the charges and, otherwise, did nothing to lessen the prosecutor’s burden of proof on this matter. Defendant’s not guilty plea “put the elements of the crime[s] in issue for the purpose of deciding the admissibility of evidence under Evidence Code section 1101.” (Daniels, supra, 52 Cal.3d at pp. 857-858, fn. omitted.) Defendant took no steps to “narrow the prosecution’s burden of proof” on any of these charges and the prosecutor could not be expected to anticipate what evidence would be unchallenged and unequivocal absent some advance indication by defendant. (Id. at p. 858.) Additionally, given that defendant also stated that he was high on methamphetamine when he approached the girls, the jury had reason to assess whether defendant acted with the requisite specific intent. In counts 1 and 2, defendant was charged with attempt to commit a lewd and lascivious act with a child under 14 years of age, which required the prosecution to prove defendant had the specific “intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of himself or the girls. (§ 288, subd. (a).)
As such, the probative value of the uncharged misconduct was high, while the tendency for prejudice was low: The testimony concerning the adult woman incident took relatively little time and was no more inflammatory than that concerning the charged offenses. Further, the jury was specifically and unambiguously instructed pursuant to CALCRIM 375 that the prosecution bore the burden of proving the charged crimes and they may consider evidence of the uncharged crime “only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged acts,” and that the jury could consider it only for the limited purpose of proving intent. As is well established, “‘[It is] the almost invariable assumption of the law that jurors follow their instructions.’ [Citation.] ‘[We] presum[e] that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’ [Citations.]” (United States v. Olano (1993) 507 U.S. 725, 740.) There is nothing in the record to suggest the jury did otherwise here. Accordingly, we find no abuse of discretion in the trial court’s ruling. Defendant’s arguments to the contrary are unavailing.
For similar reasons, we find any error would have been harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably probable defendant would have achieved a more favorable result if the court had not admitted the challenged evidence. As our foregoing analysis makes plain, given that the evidence was not cumulative, but was highly probative of the disputed issue of intent—and given the instruction that the jury must not consider the evidence for any other purpose—we are confident any such error in this case was nonprejudicial. Moreover, evidence of defendant’s guilt was overwhelming. He was positively identified as the perpetrator of the crimes by the girls and he admitted to committing the crimes in a recorded interview with the police.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., HOLLENHORST, J.