Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside No. RIF115655, James A. Edwards, Judge.
OPINION
O'ROURKE, J.
A jury convicted Larry Gene Beightol of two counts of committing a lewd act with a child (Pen. Code, § 288, subd. (a)), and found true an allegation that he committed the offenses against more than one victim (Pen. Code, § 667.61, subd. (e)(5)). The court sentenced Beightol to a term of 15 years to life in prison for each of counts 1 and 2, with the sentence on count 2 to run concurrently. On appeal, Beightol contends the court abused its discretion by admitting evidence of his prior acts of molestation under Evidence Code sections 1108 and 1101 to prove his propensity to commit sex crimes and his intent during the present offenses. We affirm.
All statutory references are to the Evidence Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Beightol and C.R. are the biological parents of H. and M.R., who were born in October 1992 and September 1993, respectively. Beightol lived with C. until M. and H. were two and three years old, but left at .'s request as a result of his excessive drinking. In 1995, when H. was approximately three and one-half years old, she came to C. and told her she was "not going to let pa touch his pee-pee to my pee-pee anymore." At the time, C. was aware that two other girls in the neighborhood had made accusations against Beightol. C. reported the incident to police, and Beightol was taken into custody.
In 1996, Beightol and C. started to see each other again; he would come by her apartment about four times a week and they would drink beer together. When Beightol had consumed too much alcohol and C. asked him to leave, he would tell her he was going to use the bathroom, and then enter the girls' room to see them, leaving the door ajar. At that time, Beightol would sit down on the bottom of the girls' bunk bed with them and slowly rub and squeeze the fronts of their arms and legs up to the thigh as they watched television. H. described him as rubbing the length of her arm or leg, which she thought was inappropriate and made her feel "weird." According to H., the touching occurred five times a week for at least a year. When she described the conduct later to an investigating police officer, H. did not mention Beightol touching her inner thigh or her private parts, and H. did not say she saw Beightol's private parts. Almost every time it occurred, H. told her mother the touching made her uncomfortable and she wanted it to stop, but C. continued to allow Beightol into the apartment. In October 2004, Beightol was charged in the instant case.
Before trial, the People moved to admit evidence of Beightol's 1995 prior sex offenses committed against sisters Jennifer and Nicole D., as well as the prior incident involving H. Specifically, the People sought to present evidence of an incident between Beightol and Jennifer D., a neighbor who was approximately seven years old at the time, after Jennifer D. had come to his apartment to play with his dogs. Beightol had her sit on his couch where he asked her to hug him, and then started rubbing her vagina over her clothing. Scared, Jennifer D. made up an excuse to leave. In a separate incident on a different day, when Nicole D. visited Beightol to play with his dogs, he had her sit down on a mattress with him on his lap, where he rubbed or kneaded her shoulders and placed his hand on her inner thigh. Nicole, who was six years old at the time, felt Beightol pushing up on her with the lower portion of his body. That incident lasted about two hours, ending when Nicole's brother came to Beightol's door looking for her.
The People pointed out that in August 1995, after Jennifer and Nicole D. reported the incidents, Beightol was charged in case No. CR64723 with two counts of Penal Code section 288, subdivision (a) offenses. He ultimately pleaded guilty to one misdemeanor count of Penal Code section 647.6 and was sentenced to 180 days in county jail. Apparently these facts were not presented to the jury in the instant case.
The next incident was that involving H.R.'s 1995 report to her mother that Beightol had sexually abused her. In a Child Protective Services (CPS) interview, H. said, "Daddy's peepee touched my peepee," pointing to her crotch. She said she and her father were on her mother's bed with no clothes on, and it was dark outside. H. described another incident where her "pa's hand touched her peepee inside" in the living room at her mother's house. The People argued the incidents were admissible as propensity evidence under section 1108, as well as evidence tending to prove Beightol's sexual intent, motive, and absence of mistake or accident under section 1101, subdivision (b).
The People stated that as a result of this incident, on October 1, 1996, Beightol admitted he had violated his probation in case No. CR64723, and as a result of the negotiated plea, the District Attorney's office stipulated that the facts contained in a report of the incident (No. P896219060) would be used to form the basis for the probation violation. Beightol was sentenced to county jail for 365 days. Again, these facts were not presented to the jury in the instant case.
Beightol opposed the motion, arguing the evidence should be excluded under section 352 as the incidents were highly inflammatory, involved more egregious conduct than the present case, and were remote in time. He also argued that admitting the evidence would result in a trial within a trial, necessitating undue consumption of time. The court admitted the evidence, and various witnesses, including H., investigating police officers, and Jennifer and Nicole D., testified about the prior incidents as set forth above.
Neither party cites to any portion of the record setting forth the trial court's ruling, or anything indicating its reasoning in admitting the evidence.
Riverside County Police Sergeant Kevin Stanton interviewed Beightol about the incidents with Jennifer and Nicole D. According to Sergeant Stanton, Beightol told him Nicole D. had come over and they talked while sitting on a mattress on his balcony, and that he touched her leg and could have accidentally touched other places. Sergeant Stanton testified that Beightol had said something to the effect of "this has to stop" or he did not want anything to happen. Beightol told Sergeant Stanton that on another day, he mistook Jennifer for Nicole, and when she asked to see his dog he took her up to his apartment where they talked and he had his hand on her leg. Sergeant Stanton wrote in his report that Beightol stated, "Something's going on I didn't want to happen, this closeness is not right, I wouldn't want my kids doing this." According to Sergeant Stanton, when Beightol touched Jennifer's leg, he said something to the effect of, "I don't want anything sexual to happen," and then Jennifer got up and left Beightol told the officer that he thought the girls were looking at him in a sexual way, and were making sexual advances. He told the officer that he believed the 6 and 7-year-old girls went to his house with sex on their minds.
DISCUSSION
Beightol contends the court prejudicially abused its discretion by admitting his prior acts of molestation under sections 1108 and 1101 to prove propensity to commit sex acts and intent during the charged offenses. Reviewing the trial court's decision for abuse of discretion as we must (People v. Abilez (2007) 41 Cal.4th 472, 498), we reject these contentions.
I. Admissibility of Prior Acts Under Section 1108
Relying on the factors described in People v. Harris (1998) 60 Cal.App.4th 727, Beightol argues the evidence fails to meet the standards for admissibility under section 1108. He maintains the prior acts are inflammatory because they involved blatantly sexual conduct as compared to the present offenses, which involved "relatively innocuous" behavior; the prior acts presented a probability of confusing the jury; they were remote in time; and they were totally dissimilar to the charged offenses.
Section 1108, subdivision (a) provides: "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." Reviewing the statute's legislative history, the California Supreme Court has explained that " 'the Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. . . . [A]vailable legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints . . . section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that "propensity" evidence is per se unduly prejudicial to the defense.' " (People v. Abilez, supra, 41 Cal.4th at p. 502, quoting People v. Falsetta (1999) 21 Cal.4th 903, 911.)
" 'Rather than admit or exclude every sex offense a defendant commits, trial judges must 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. Abilez, supra, 41 Cal.4th at p. 502, italics omitted.)
While Abilez identifies several considerations, section 352's "weighing process . . . depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see also People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Nothing requires a trial court to consider or apply each of a list of particular factors; we need not go beyond the settled appellate standards for assessing a trial court's decision to admit evidence under section 352. (People v. Jennings, at pp. 1314-1315.) Further, given that the record is silent as to the trial court's reasoning, we will indulge all intendments and presumptions in favor of the trial court's actions. (Cote v. Henderson (1990) 218 Cal.App.3d 796, 802.)
Under these standards, and viewing the evidence in the light most favorable to the trial court's ruling (see e.g., People v. Carter (2005) 36 Cal.4th 1114, 1148), we cannot conclude the trial court's ruling in admitting Beightol's prior offenses was arbitrary, capricious, manifestly absurd, or exceeded the bounds of reason. (People v. Mullens, supra, 119 Cal.App.4th at p. 658.) We disagree the facts of Beightol's past offenses were so inflammatory or prejudicial as to preclude their admission in this case on the issue of his propensity to commit such acts. None of the prior acts involved extreme violence or severe injuries as did the defendant's prior conduct in People v. Harris, supra, 60 Cal.App.4th at page 733. In Harris, the trial court was held to have prejudicially abused its discretion in admitting an incomplete and distorted version of the defendant's prior act involving brutal sexual mutilation in a case in which the defendant had kissed, fondled and sexually preyed upon emotionally and physically vulnerable women – crimes held to be of a "significantly different nature and quality." (Harris, at p. 738.) The facts surrounding Beightol's acts against Nicole – sitting down with her on a mattress where he rubbed her shoulders and touched her inner thigh – were no more incendiary than the present offenses. While the prior acts toward Jennifer and H. involved more blatantly sexual conduct, that alone does not make them unduly inflammatory. By nature, evidence of prior sex offenses involves unpleasant facts of sexual misconduct. The facts of defendant's acts against Jennifer and H., while more egregious than the present offenses, were not so extreme to warrant their exclusion.
We reject Beightol's argument that because the jury was not informed that he was punished for his prior acts, we should be concerned the jury would become confused and more likely to seek retribution. Here, the jury was not told one way or the other about the legal outcome of these prior incidents. Thus, this case is like People v. Callahan (1999) 74 Cal.App.4th 356, which upheld the trial court's admission of prior act evidence after distinguishing People v. Harris, pointing out that in Harris the jury heard evidence suggesting the defendant had committed a vicious, bloody battery and rape, and was told he had been convicted of burglary, but not of assault or of any sex crime. (Callahan, at p. 371, citing People v. Harris, supra, 60 Cal.App.4th at p. 727.) "The Harris jury therefore was affirmatively given the impression that the defendant there had committed a battery and rape and had never been convicted of those crimes." (Callahan, at p. 371.) Here, like Callahan, there is no evidence or indication the jury was confused about how to handle the evidence of prior sexual offenses, particularly when it was given proper instructions (modified versions of CALJIC Nos. 2.50.01 and 2.50.1) relating to the admission of such evidence. We presume the jury followed the instructions absent evidence to the contrary. (People v. Roldan (2005) 35 Cal.4th 646, 743; People v. Sanchez (2001) 26 Cal.4th 834, 852.)
At both parties' request, the court read modified versions of CALJIC Nos. 2.50.01 and 2.50.1 as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: [¶] . . . [A]ny conduct made criminal by Penal Code section 288, [subdivision] (a). [¶] The elements of this crime are set forth elsewhere in these instructions. [¶] Contact without consent between any part of the defendant's body and the genitals of another person; or [¶] Contact without consent between the genitals of the defendant and any part of another person's body. [¶] If you find that the defendant committed a prior sexual offense, you may but are not required to infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. [¶] If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Unless you are otherwise instructed, you must not consider this evidence for any other purpose. [¶] Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that the defendant committed crimes or sexual offenses other than those for which he is on trial. You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed these sexual offenses. [¶] If you find the sexual offenses were committed by a preponderance of evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime."
Nor do we agree the prior offenses are " 'totally dissimilar' " to the charged offenses as Beightol asserts. The prior incidents involved improper touchings of young girls. (Accord, People v. Mullens, supra, 119 Cal.App.4th at p. 660 [holding that under section 1108 analysis, dissimilarities in alleged incidents goes to weight, not admissibility, of evidence].) The conduct with Jennifer and Nicole involved them sitting with defendant while he touched or caressed them, as occurred during the present offenses. Jennifer and Nicole were approximately six and seven years old at the time of the incidents, prepubescent as were H. and M. at the time of the current offenses. Beightol argues the prior incidents differ in that they involved his use of deception to isolate the victims, however, in the present offenses he deceived C. into thinking he was using the restroom in order to get into the girls' room through a separate door without her scrutiny. Beightol points to other dissimilarities in that in the present case, there were two victims in the room and the victims' mother was in the apartment at the time. However, those differences do not negate the probative value of the prior incidents; the mother was not in the girls' room during defendant's touchings and they were effectively isolated from their mother at the time. In our view, the few dissimilarities do not negate the probative value of the prior offenses.
We further reject the argument that the incidents were remote. H. estimated that Beightol's touching of her and her sister started in about 1999, but other testimony from both H. and her mother permits a conclusion that it could have started earlier, after he began coming to their apartment in 1996. There are no specific time limits establishing when a prior offense is so remote as to be inadmissible. (People v. Pierce (2002) 104 Cal.App.4th 893, 900; People v. Branch (2001) 91 Cal.App.4th 274, 284 [evidence of 30-year-old sex offense properly admitted].) Beightol concedes his prior conduct was not sufficiently remote to weigh in favor of its exclusion as evidence in the present case. In our view, given the presumptions in favor of the trial court's rulings, his concession eliminates the need to discuss this factor any further.
Finally, Beightol has not shown the testimony of the prior acts consumed an undue amount of time, other than to say it "occupied more than 45 pages of the transcript." He has not explained what percentage of time 45 pages constitutes or provided any ratio to the number of pages of transcript taken up in the remaining trial testimony. We decline to make his argument for him, and thus we conclude he has not shown the prior act evidence was so unduly time consuming as to render it inadmissible for purposes of section 1108.
II. Admissibility of Prior Acts Under Section 1101
Beightol contends his prior acts are too dissimilar to the present offenses, and thus are inadmissible on the issue of his intent under section 1101, subdivision (b). Under that section, " '[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.' " (People v. Carter, supra, 36 Cal.4th at p. 1147; see also People v. Gray (2005) 37 Cal.4th 168, 202; People v. Walker (2006) 139 Cal.App.4th 782, 795-796.) As stated in People v. Gray, a defendant's previous similar crime " 'can be circumstantial evidence tending to prove his identity [and] intent . . . in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion.' " (People v. Gray, at p. 202.)
A trial court must scrutinize with great care the admissibility of such evidence under sections 1101 and 352. (People v. Gray, supra, 37 Cal.4th at p. 202.) Section 352 provides that "[t]he court in its discretion may exclude evidence if 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." On appeal, we review the trial court's ruling on the issue, essentially a determination of relevance, for abuse of discretion. (People v. Carter, supra, 36 Cal.4th at p. 1147.)
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superceded on other grounds as stated in People v. Britt (2000) 104 Cal.App.4th 500, 505; see also People v. Kipp (1998) 18 Cal.4th 349, 369.) In People v. Roldan, supra, 35 Cal.4th at page 706, the court explained it has " ' "long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." ' "
Beightol argues that the prior incidents were not relevant to his intent during the present offenses because the acts were not similar and he did not behave in a similar manner. We have already rejected his argument in part I, ante,that the past and present offenses are " 'totally dissimilar' " for purposes of their admission under section 1108. We conclude additionally that the similarities identified above are sufficient for the trial court to reasonably admit the evidence on the issue of Beightol's intent in committing the present offenses under section 1101, subdivision (b). His intent in touching H. and M. in the present case was plainly at issue. Beightol's earlier behavior in caressing and fondling H., Jennifer D. and Nicole D. for his sexual gratification in circumstances where they were isolated and sitting with him, circumstances present in this case, supports an inference that he probably harbored the same intent in each instance.
Finally, we cannot say that the probative value of the evidence was outweighed by its potential for prejudice. " 'The "prejudice" referred to in section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) Beightol has not persuaded us that the probative value of the prior act evidence was substantially outweighed by the potential for undue prejudice, and thus we conclude the trial court did not abuse its discretion in admitting the evidence at trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J. McINTYRE, J.