Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H43196
RUVOLO, P. J.
I.
INTRODUCTION
Appellant Rafael Favis Luna was found guilty by a jury of sexually molesting his youngest daughter. He was convicted on all nine counts charged; five counts of committing lewd acts on a child under age 14, and four counts of oral copulation of a person under the age of 14. (Pen. Code, §§ 288, subd. (a), 288a, subd. (c).) On appeal he argues that the evidence of subsequent sexual conduct with his daughter after she turned age 14 was improperly admitted under Evidence Code section 1108, and as a result, the convictions should be reversed. Appellant also argues that he was denied his right to due process when count eight was modified at trial to a charge not presented at the preliminary hearing. We affirm.
II.
FACTS AND PROCEDURAL HISTORY
C. accused her father of sexually abusing her starting when she was in the sixth grade. She testified that appellant would touch her sexually underneath her clothing while the two of them watched television in her parents’ room, sometimes hidden under a blanket while the rest of the family was in the room. C. also testified that appellant would come into her room, at night or early in the morning, and touch her sexually beneath her underwear, occasionally getting into the bed with her. According to her trial testimony, starting in seventh or eighth grade, appellant started performing oral sex on her, which happened approximately once per week.
The sexual abuse continued for two years, including after C. turned age 14, and until she told the rest of her family about it. At that point C., her sisters, and mother moved out of the family home. The day that C. told her family about the abuse, her father had found her hugging with her boyfriend after school and slapped her in anger. Her mother and sisters came to the school, at which point C. ran from her father and told them about the sexual abuse. Prior to this report, C.’s mother and a sister had asked C. about any abuse, which she denied because she was afraid of breaking up her family. C. went to the police to report the abuse two years after telling her family.
C.’s sister S. testified that when their mother was gone C. would sleep in appellant’s room. She also testified that appellant would come into the room S. and C. shared late at night or early in the morning. C.’s mother testified at trial that she confronted her husband about being in C.’s bed, and appellant responded, “You have a dirty mind.” The prosecution introduced evidence of a taped phone call between C. and appellant talking about the sexual abuse. In that call, when C. asked him questions about the abuse, appellant did not adamantly deny every comment. The prosecution argued for adoptive admission based on that phone call.
Appellant did not testify at trial. During closing argument, defense counsel pointed out discrepancies between the victim’s testimony and that of her other family members’ testimony. Defense counsel also pointed to the frequency of the abuse and the implausibility that no other witness testified that they saw or heard the inappropriate touching.
Appellant was convicted on all nine charges and sentenced to a total of 16 years in state prison. Appellant filed a timely notice of appeal.
III.
DISCUSSION
A. Admission of Uncharged Subsequent Sexual Crimes
Appellant contends that the trial court abused its discretion when it admitted evidence of subsequent uncharged sexual offenses against him by the same complaining witness under Evidence Code section 1108. The evidence of uncharged sexual offenses was the testimony of C. about continuing abuse after she turned age 14. C. testified that appellant continued to orally copulate her and perform other lewd acts, often in exchange for permission to attend social and school events.
All subsequent undesignated statutory references are to the Evidence Code.
As a general rule, evidence of uncharged crimes is not admissible to prove propensity or disposition to commit similar acts. (§ 1101.) However, section 1108 is an exception to section 1101 when the crimes charged are for sexual offenses. Section 1108 allows evidence of disposition to commit sexual offenses and “the case law clearly shows that evidence that [a person] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses.” (People v. Falsetta (1999) 21 Cal.4th 903, 915, italics added (Falsetta).) In fact, evidence of disposition to commit crime is normally “ ‘objectionable, not because it has no appreciable probative value, but because it has too much.’...” (1 Wigmore, Evidence (3d ed. 1940) § 194, pp. 646-647, as quoted in People v. Alcala (1984) 36 Cal.3d 604, 631, italics omitted.)
Although admissible, evidence to show disposition to commit sexual crimes is still subject to section 352 balancing before its admission. (§ 1108.) The trial court has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) An exercise of trial court discretion is only reviewable for abuse and “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Appellant’s opening brief mentions de novo review when a “trial court’s ruling depends on the proper interpretation of the Evidence Code.” Appellant does not develop an argument on appeal of an improper interpretation of the Evidence Code.
Appellant claims the testimony by C. of the continued abuse had no probative value because the evidence was from the same victim, and not from an independent source. To support his contention, appellant cites a factor discussed in People v. Balcom (1994) 7 Cal.4th 414 (Balcom), that the probative value of uncharged crimes evidence “is increased because its source apparently was independent of the evidence of the charged offenses.” (Id. at p. 427.) Because C. gave this testimony herself, appellant asserts that it had no probative value because it lacked an independent source. However, the factors listed in Balcom and restated in Falsetta are described as those that increase the probative value, not those necessary for the evidence to have any probative value. (Ibid.; Falsetta, supra, 21 Cal.4th at p. 917.)
Moreover, there are two other factors discussed in Balcom that suggest C.’s uncharged crimes testimony has increased probative value. “[T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses....” (Falsetta, supra, 21 Cal.4th at p. 917.) In this case, C.’s section 1108 testimony was that the same forms of abuse continued as they had during the charged time period. The probative value of other sexual crimes evidence is also increased by “the close proximity in time of the offenses....” (Ibid.) The uncharged crimes testimony in this case describes sexual abuse that was contiguous in time to the charged offenses. Considering the intrinsic circumstantial relevance of evidence of other sexual crimes, the close temporal proximity of the subsequent crimes, and the almost identical nature to the crimes charged, we find the trial court did not abuse its discretion in holding the testimony of the subsequent uncharged sex offenses had probative value.
The prosecution mistakenly stated that C. turned 14 in November 2000 instead of November 1999.
Appellant alternatively argues that, even if probative, the subsequent offenses evidence is substantially outweighed by the undue prejudice under section 352. As discussed above, it is clear that the contested evidence is particularly probative to the appellant’s disposition to commit sex offenses. In allowing the section 1108 evidence, the trial court relied on People v. Soto (1998) 64 Cal.App.4th 966 (Soto). Soto allowed evidence under section 1108 because it was a similar type of incident, was close in time, and “[t]he prejudice presented by this evidence is the type inherent in all propensity evidence....” (Id. at pp. 991-992.) Obviously, evidence that is particularly gruesome carries a high risk of undue prejudice and that evidence should clearly fail section 352 if it is “inflammatory in the extreme.” (People v. Harris (1998) 60 Cal.App.4th 727, 738, italics omitted.) But, the additional testimony by C. was no more inflammatory than the testimony about the charged crimes. In this case, the contested evidence was akin to that of Soto, because it was close in time, similar in nature, and not only carried the type of prejudice specifically contemplated by the Legislature in passing section 1108, but also no more prejudice as the evidence for the charged crimes.
Appellant claims that the admission of the subsequent uncharged sexual offenses also unduly prejudiced him because the jury instructions given confused the burden of proof on the charged offenses. The court gave the full jury instruction under CALCRIM No. 1191, explaining that each of the charged crimes must be proven beyond a reasonable doubt. The uncharged crimes evidence, however, is weighed by the jury for a preponderance of the evidence. This is done before the uncharged crimes can be used as evidence of propensity, which is merely a factor in the proof for the charged crimes. (CALCRIM No. 1191.) The jury instruction has been upheld as constitutional against an attack that it altered the requirement for “beyond a reasonable doubt.” (People v. Schnabel (2007) 150 Cal.App.4th 83, 87 [analogizing to People v. Reilford (2003) 29 Cal.4th 1007].) As a general principle, “[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Indeed, there is no suggestion in the record that the jury here was unable or failed to follow the instructions properly.
Reilford involved CALJIC No. 2.50.01, a similar instruction to CALCRIM No. 1191 on section 1108 evidence. The court rejected that the instruction was too complicated to apply stating, “This is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.]” (Reilford, supra, 29 Cal.4th at p. 1016.)
B. Amendment to Count Eight at Trial
Appellant contends that the trial court erred in allowing count eight of the information to be amended during trial. Count eight charged appellant with violation of Penal Code section 288, subdivision (a), a lewd and lascivious act with a child under the age of 14, between September 1, 1997, and June 30, 1998. When initially filed, the prosecution included a supplemental description of the incident, stating the act was “in defendant’s bedroom, in a ‘69’ position.” Near the end of trial, the court allowed the prosecution to amend count eight by striking the descriptive language “in a ‘69’ position” under Penal Code section 1009. Appellant objected to the amendment and concurrently moved to dismiss count eight for lack of proof. The trial court granted the amendment stating, “[t]he code and the cases that I’ve referred to in the citation under section [1009] seem to permit the People to conform to the proof that was presented at the trial if it’s not to the prejudice of the defense.”
Misquoted as Penal Code section 1109 by trial judge in the record and again in respondent’s brief.
In relevant part, Penal Code section 1009 provides that a trial court “may order or permit an amendment of an indictment, accusation or information... for any defect or insufficiency, at any stage of the proceedings... unless the substantial rights of the defendant would be prejudiced thereby....” (Pen. Code, § 1009.) Permission to amend a complaint is reviewed for abuse of discretion and “ ‘will not be disturbed on appeal in the absence of showing a clear abuse of discretion.’...” (People v. Bolden (1996) 44 Cal.App.4th 707, 716; People v. George (1980) 109 Cal.App.3d 814, 818-819.)
Appellant correctly points out that Penal Code section 1009 “specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing.” (People v. Winters (1990) 221 Cal.App.3d 997, 1007 (Winters).) Appellant argues that the judge erred in amending count eight because there was insufficient evidence at the preliminary hearing to give fair notice of the amended charge. However, the cases cited by appellant are readily distinguishable from this case, and therefore, not dispositive or even persuasive.
For example, in Winters, supra, 221 Cal.App.3d 997, the defendant was initially charged with sale of methamphetamine and later charged with transportation of methamphetamine through an amendment at trial. (Id. at p. 999.) Since there was no preliminary hearing in Winters (due to waiver), the court reversed the transportation conviction. (Id. at pp. 1007-1008).
In People v. Dominguez (2008) 166 Cal.App.4th 858 (Dominguez), the amendment extended the possible date range of the charged vehicle theft, leaving defense unable to prepare and present a defense for the amended time period. Similarly, in People v. Kellin (1962) 209 Cal.App.2d 574 (Kellin), the preliminary hearing only contained allegations of one specific check theft, yet the prosecution presented evidence at trial of multiple check thefts that occurred at different times. Therefore, allowing the amendment would have expanded the date range on the charge from one day to two months in order to include all three alleged check thefts. (Id. at p. 575.) The presentation of alternate crimes for the first time at trial, allowed “defendant to be charged and perhaps convicted of an offense not shown by evidence at the preliminary examination.” (Id. at p. 576.) Thus, because both Dominguez and Kellin extended the time frame of the charges and because the preliminary hearing did not contain that information, defendants lacked proper notice.
In appellant’s case, however, the time frame was not altered in the amendment to count eight. The original version of count eight put appellant on notice that he must defend against Penal Code section 288, subdivision (a), within the time frame of September 1997 to June 1998. The amendment deleted elective language that was originally based on a description at the preliminary hearing by C. of a specific incident. However, the time period of count eight covered C.’s sixth grade school year and the preliminary hearing transcript supports multiple acts of lewd conduct acts during that time frame:
“[PROSECUTOR]: The kind of incident that you’re describing where your father would start with your leg and start touching your genitals while you were watching TV in [defendant’s] bedroom, how many times do you think that happened overall?
“[DEFENSE COUNSEL]: Objection, vague as to period of time.
“[PROSECUTOR]: I’m talking about from the time it first happened when you were in sixth grade until it stopped. [¶] How many times do you think it happened?
“[C.]: I don’t think I’d be able to count because it was just so continuous.
“[PROSECUTOR]: When you say, ‘so continuous,’ like how often would it happen?
“[C.]: Probably almost everyday.
“[PROSECUTOR]: And over what period of time did it happen almost everyday until it stopped?
“[C.]: From sixth grade until—well, first it continued to happen like almost everyday like twice that day or so and then like as I got older, like until my sophomore or junior year, then it would gradually stop.”
On our own motion we have augmented the record on appeal to include the preliminary hearing transcript portions for appellant’s case taken on December 1 and 2, 2004. (Cal. Rules of Court, rule 8.155(a).) The hearing took place before the Honorable Donald Squires in Department 608 of the Alameda County Superior Court. The trial court relied upon the preliminary hearing transcript, but it was not included in the record on appeal. The transcripts for those two days were provided by the original defense attorney upon our request. Having augmented the record to include the preliminary hearing transcript, we take judicial notice of that court record. (§§ 452, 459.)
Appellant did not have adequate notice if the preliminary hearing failed to contain necessary particulars, such as only identifying a victim and specific acts, but not the specific defendant or co-conspirators. (People v. Pitts (1990) 223 Cal.App.3d 606, 907 (Pitts).) While the preliminary hearing in Pitts supported the number of offenses charged initially and as amended, in “some counts as charged in the second amended informations (first amended as to Forsythe),... the specific act and/or actors changed from previous amendments, and/or the specific act involving specific actors was not shown by evidence adduced at a particular preliminary hearing. (Id. at p. 907.)
In appellant’s case, however, the preliminary transcript did give him notice of “the time, place and circumstances of charged offenses[, which] ‘ “is the touchstone of due process notice to a defendant.” ’...” (People v. Pitts, supra, 223 Cal.App.3d at p. 908, citing People v. Jeff (1988) 204 Cal.App.3d 309, 342, fn. omitted.) That testimony alleged that he was accused of lewd touching of C. under Penal Code section 288, subdivision (a) occurring almost daily in his bedroom during the timeframe charged in count eight. Therefore, the testimony at the preliminary hearing was sufficient enough as to time, place and circumstances to find that the trial court did not abuse its discretion in allowing the amendment to count eight under Penal Code section 1009.
IV.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.