Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 209525
SEPULVEDA, J.
A jury convicted defendant of indecent exposure after he took off his clothes and masturbated in view of a security guard working at a San Francisco school district building. Defendant challenges the admission of evidence of a prior sex offense (Evid. Code, §§ 352, 1108) and contends that the trial court misinstructed the jury. We disagree and affirm.
All statutory references are to the Evidence Code unless otherwise specified.
I. Factual and Procedural Background
About 7 a.m. on July 19, 2009 (a Sunday), a security guard was working at a school district office building on Franklin Street in San Francisco. He was sitting at a desk in the lobby when he saw defendant (who was about 15 feet away outside a glass door) make an obscene gesture, which the security guard interpreted to mean that defendant wanted the guard to expose his penis while defendant exposed his. Defendant went to another area outside the building where the security guard could still see him, and began to take off his clothes. Defendant removed his jacket and shirt, then lowered his pants and started masturbating. The security guard told defendant to leave, then called police. At some point, defendant put his clothes back on, moved toward the security guard, said, “[T]hank you. Thank you, ” and left. A recording of the incident taken with a surveillance camera outside the entrance to the building was shown to the jury.
Police officers arrived about ten minutes after defendant left. The security guard went outside to speak with them, and saw defendant running down Franklin Street toward McAllister Street. Police followed defendant and arrested him after the security guard identified defendant to the officers.
Defendant was charged by information with one felony count of indecent exposure (Pen. Code, § 314, subd. 1), with a prior indecent exposure conviction alleged under the same section.
The People filed a motion before trial seeking the introduction of two prior sexual offenses committed by defendant, pursuant to sections 1108 and 1101, subdivision (b). The motion provided brief factual summaries of the offenses. The first involved defendant’s conviction of a misdemeanor indecent exposure count (Pen. Code, § 314, subd. 1) after he was found on March 26, 2006 in a downtown San Francisco office naked, and at first refused to leave when asked. The second involved an incident where defendant was found masturbating on the roof of another downtown San Francisco building on June 20, 2008; defendant was arrested, but the criminal charges were not pursued by the district attorney. Defendant opposed the introduction of the prior offenses, arguing that their probative value was substantially outweighed by the probability that they would necessitate undue consumption of time or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury. (§ 352.)
The trial court admitted evidence of the 2006 incident (where defendant was found naked in an office) pursuant to section 1108. The court concluded that admission of the prior offense was not unduly prejudicial because it (1) involved similar conduct to that in the current case, (2) was similarly as graphic as the current offense, and (3) had been adjudicated. The court excluded evidence of the 2008 incident (where defendant was found masturbating on a roof) pursuant to section 352, concluding that presenting evidence regarding an offense that was not adjudicated would confuse the issues and constitute an undue consumption of time.
The prosecutor also argued that the offense was admissible under section 1101, subdivision (b) (character evidence to show conduct), because it was relevant to show lack of mistake, motive, intent, and a common scheme or plan. Before trial, the trial court deferred a decision on whether the 2006 incident was admissible under section 1101, subdivision (b). After the close of evidence, the court ruled that evidence of the prior offense was not admissible pursuant to section 1101, subdivision (b), because the evidence was not relevant to prove identity, modus operandi, or a common scheme or plan.
At trial, a certified public accountant testified that while working on the afternoon of March 26, 2006 in his fourth floor office in downtown San Francisco, he returned from a trip to the restroom and found defendant naked under his desk, with his bottom and feet sticking out from underneath the desk. The accountant asked defendant to leave, but defendant at first refused, and he stood by a door fondling his penis. After being asked several more times to leave, defendant grabbed his clothes and left. The accountant notified the building security guard, who traveled to the fourth floor of the building and observed defendant naked on a stairway coating himself in baby oil, with his hands on his genitals masturbating. Because defendant did not leave when asked and instead said he wanted to “finish, ” the security guard called police. When police arrived, defendant was clothed, and he was wiping baby oil on his face.
A jury found defendant guilty of indecent exposure (Pen. Code § 314, subd. 1), and the trial court found defendant’s prior conviction true under the same section after defendant stipulated to the truth of the allegation. The trial court placed defendant on probation for three years. Defendant timely appealed.
II. Discussion
A. Admission of Prior Sexual Offense.
1. Constitutional challenge to section 1108
Defendant first argues that section 1108 is unconstitutional because the admission of evidence of his prior sexual offense pursuant to the statute violated his due process rights. Section 1108 provides that in a criminal action in which a defendant is accused of a sexual offense (including indecent exposure), evidence of a previous sexual offense or offenses is not made inadmissible by section 1101’s prohibition on admission of evidence of prior conduct, so long as the evidence is not inadmissible pursuant to section 352. (§ 1108, subds. (a) & (d)(1)(A); People v. Falsetta (1999) 21 Cal.4th 903, 911.) Defendant candidly acknowledges that the California Supreme Court previously has rejected this argument (Falsetta at p. 922), and that we are bound by that holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455); he raises the issue solely to preserve it for federal review. We reject defendant’s due process challenge to the statute.
Defendant also argues in passing that section 1108 violates equal protection principles, claiming that the cases rejecting this identical argument were “incorrectly decided.” (E.g., People v. Fitch (1997) 55 Cal.App.4th 172, 184-185; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 [rejecting challenge to § 1109, regarding uncharged acts of domestic violence].) However, defendant offers no reason to take issue with these cases, and we decline to do so.
2. Section 352
Defendant argues that even if section 1108 is constitutional, the evidence of his prior sexual offense should have been excluded pursuant to section 352, which is a safeguard against the use of sexual offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Evidence is inadmissible pursuant to section 352 where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “The trial court’s exercise of discretion in admitting evidence under... section 352 will not be disturbed unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 406 [no abuse of discretion to admit evidence pursuant to § 1108].)
In performing the balancing test under section 352 to determine the admissibility of evidence proffered under section 1108, the trial court must, “[r]ather than admit or exclude every sex offense a defendant commits... consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
Looking to these factors in the present case, the trial court did not abuse its discretion in determining that evidence of defendant’s 2006 offense was admissible under section 1108. The 2006 offense was of the same nature as the current offense-both were indecent exposure cases. The previous offense was relevant to prove defendant’s propensity to commit sexual offenses, as it was an enumerated sexual offense under section 1108, subdivision (d)(1)(A). The prior offense was not remote in time, as it occurred about three years before the present offense. There was no issue regarding the degree of certainty of the commission of the previous offense, as defendant was convicted of the crime. Testimony from three witnesses regarding the incident took less than 45 minutes. The trial court excluded evidence of one of the two sexual offenses that the prosecution sought to admit, which was a less prejudicial alternative to admitting all of the proffered evidence of defendant’s prior sexual offenses.
As for the likely prejudicial impact on the jury and the chance that admission of the evidence of the 2006 offense would confuse, mislead, or distract the jury, defendant overstates the inflammatory nature of the prior incident compared with the current offense. Although defendant apparently exposed himself to two people (the accountant and the security guard) in the 2006 incident as opposed to one person in the present case, the fact that an additional person viewed defendant naked did not make the prior incident so unduly inflammatory as to make its admission an abuse of discretion. A security guard testified that in the 2006 incident, he saw defendant about five or six feet away on a stairway, coated with baby oil and with his hands moving on his genitals. We disagree with defendant’s characterization of the evidence as so “lurid and deeply disturbing” that it should have necessarily been excluded. We agree with the trial court that the prior offense was similarly graphic as the charged offense, as both incidents involved situations where defendant masturbated in front of strangers who were working at office buildings in downtown San Francisco despite being told to leave.
Even assuming that admission of evidence of the prior offense was error, we conclude that any such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [reversible error if reasonable probability that result more favorable to defendant would have been reached in absence of error]; People v. Mullens (2004) 119 Cal.App.4th 648, 658-659 [error in admission or exclusion of evidence following exercise of discretion under § 352 in considering whether to admit evidence under § 1108 reviewed under Watson harmless error test].) There was no dispute at trial that defendant masturbated in front of a security guard who was previously a stranger to him, and the security guard testified that he did not like seeing defendant’s actions. Defense counsel suggested during closing argument that the incident was a consensual encounter and that the security guard called police in order to “cover his tracks” and keep his job, a speculative argument. Defendant argues on appeal that there were some inconsistencies in the security guard’s testimony that called his credibility into doubt. However, in light of all the evidence presented, we cannot say that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of evidence of his prior offense.
B. CALCRIM No. 1191.
In a related argument, defendant contends that instructing the jury with CALCRIM No. 1191 violated his constitutional rights to due process and proof beyond a reasonable doubt. Defendant acknowledges that the California Supreme Court has rejected a similar attack on CALJIC No. 2.50.01 (People v. Reliford (2003) 29 Cal.4th 1007, 1009), and he raises the issue to preserve it for federal review. Appellate courts have found that CALCRIM No. 1191 is similar in all material respects to CALJIC No. 2.50.01. (E.g., People v. Cromp (2007) 153 Cal.App.4th 476, 480; People v. Schnabel (2007) 150 Cal.App.4th 83, 86-87.) Because we may not apply the law in a manner that directly contradicts our Supreme Court’s interpretation of it, we reject defendant’s challenge to the instruction. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
As modified in this case, the instruction provided: “The People presented evidence that the defendant committed the crimes of indecent exposure that was [sic] not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit indecent exposure, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of indecent exposure. The People must still prove the charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.” Defense counsel stated below that “there really [we]re no disagreements” regarding jury instructions.
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.