Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 05-051220-2
Sepulveda, J.
A jury convicted defendant Fortino Pozos Sanchez of 11 counts of lewd and lascivious acts upon a child under age 14 (his daughter). (Pen. Code, § 288, subd. (a).) The court sentenced defendant to 20 years in prison.
Defendant appeals, and contends that the trial court erred in admitting “inflammatory” evidence that the mother of defendant’s daughter is not his wife, but his stepdaughter, and that defendant had sexual relations with his stepdaughter when she was 17 years old. Defendant contends that evidence of defendant’s sexual relations with his minor stepdaughter was admitted for two purposes: (1) as a prior sex offense to prove his disposition or propensity to commit sex offenses (Evid. Code, § 1108; Pen. Code, § 261.5, subd. (a)), and (2) as a prior act of misconduct offered to prove intent and absence of accident on the charged offenses (Evid. Code, § 1101, subd. (b)). Defendant challenges admissibility under both provisions, and contests the constitutionality of Evidence Code section 1108. Defendant also contends that he was wrongly prosecuted for committing multiple counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)) instead of a single count of the separately defined crime of continuous sexual abuse of a child, which carries a maximum 16 year sentence (Pen. Code, § 288.5).
We conclude that evidence of defendant’s sexual relations with his minor stepdaughter was properly admitted to prove intent and lack of accident in his relations with his daughter, the alleged victim in this case. (Evid. Code, § 1101, subd. (b).) The evidence was also properly introduced as basic background information to explain his daughter’s parentage, to impeach defendant’s credibility given his inconsistent statements to the police about his daughter’s parentage, and to rebut evidence of defendant’s character adduced by the defense. (Evid. Code, § 1102, subd. (b).) The evidence was not used to show criminal propensity under Evidence Code section 1108, and thus that provision is irrelevant on appeal.
We also reject defendant’s contention that he was improperly charged with separate counts of lewd acts with a child (Pen. Code, § 288, subd. (a)), instead of a single count of continuous sexual abuse (Pen. Code, § 288.5). Prosecutors have wide discretion concerning the type and number of crimes to charge and are free to plead and prove discrete sexual offenses instead of continuous sexual abuse. We affirm the judgment.
FACTS
Family history
Defendant’s wife testified that she married defendant in 1976, in Mexico. Defendant’s wife had a daughter from a previous relationship, who was three years old when defendant and his wife married. Defendant and his wife have two daughters together, both born before 1990.
Defendant also fathered two children with his stepdaughter. Defendant’s wife testified about these matters at trial without objection. The first child, a boy, was born in 1992, when the stepdaughter was 18 years old. The stepdaughter turned 18 in August 1991, and gave birth less than six months later, in early February 1992. The second child, a girl who is the alleged molestation victim, was born a couple years later, in 1994.
Defendant’s wife testified (again, without objection) that she did not know her husband was having sexual relations with her daughter, and did not learn the identity of the childrens’ father until 1996. The family, which moved back and forth between California and Mexico, was living in Mexico in 1996 when defendant and his stepdaughter told defendant’s wife about their relationship. The prosecutor asked defendant’s wife if, when the relationship was revealed, she asked defendant and his stepdaughter when the relationship started. Defense counsel objected at this point, and the relevancy objection was sustained.
The prosecutor turned to the reaction of defendant’s wife to the revelation, and she testified that she left the house, went to live with her mother-in-law, and “filed a report with the prosecutor’s office to inform them about everything that had been happening.” Defendant’s wife said the authorities did not do anything. In testimony that is far from clear, the wife said that defendant did not have the “means to pay for the bail, but he didn’t end up paying for the bail and then they didn’t detain him.” Defendant’s wife returned to the house to live with defendant. The stepdaughter left several months later, leaving the children to be raised by defendant and his wife.
Defendant returned to California and, in 2003, was joined here by his wife, a 20-year-old daughter from his marriage (now herself married and accompanied by her husband), and the two children (a son and daughter) from defendant’s relationship with his stepdaughter. At the time, the son was about 11 years old and the daughter (called Jane Doe in the trial transcript to provide confidentiality) was age 8. The children initially believed defendant and his wife were their parents but were later told the identity of their biological mother.
In December 2004, about a year or year and a half after the family moved back in with defendant, Jane told defendant’s wife that defendant had “touched her.” The wife testified that Jane said whenever she and defendant played together, defendant would “touch her breast” and “pass his hand on her.” Defendant’s wife said she confronted defendant with the accusation, and he denied molesting Jane. Defendant’s wife said she thought about leaving the house, but she did not have a job. The prosecutor asked defendant’s wife if she continued to leave Jane alone with defendant after Jane confided in her about the touchings, and the wife replied: “Yes. I know that was my mistake, yes.”
On cross-examination, defense counsel renewed questions about defendant’s relationship with his stepdaughter. Defense counsel noted that defendant’s wife had testified about going to the Mexican authorities to tell them about defendant’s relationship with his stepdaughter, and asked: “Isn’t it true that [defendant] came home or got out because you withdrew the charges?” Defendant’s wife made a vague reply about bail, and defense counsel asked if it wasn’t true that defendant “was released not because he posted bail but because the charges were dismissed.” Defendant’s wife said she withdrew the charges because her daughter, along with defendant, was “going to end up going to jail.”
Child’s testimony
In June 2005, defendant’s daughter Jane ran away from home and went to the police to report that her father had “touched” her. Jane was 11 years old at the time. At trial, Jane (then 13 years old) testified that she ran away with the intention of reporting her father. Jane ran away, became lost, but “found this lady, and I told her to take me to the police station.” Jane told the police that defendant touched her breasts and vagina with his hands. Jane testified that she went to the police because she was afraid she was going to be left alone with her father again. When left alone with him, he would touch her.
Jane testified that the family moved into an Antioch house about two years before she ran away, and that the first touching occurred in that house when she was play-wrestling with her father. Her father, defendant, put his hand on her vagina, over her clothes. Jane said, “no,” and put a pillow in front of herself. In another incident, Jane was playing a video game when defendant touched her breast. The touchings occurred when defendant’s wife was either at church or in another room.
Jane testified that defendant touched her breasts or vagina a total of 12 times, 11 times at the Antioch house and once during a family visit to Stockton. Jane was asked, “Why are you so certain that it was 12 times?” Jane replied, “Because I count them.” Jane would number the incidents when they occurred, counting, for example, that “[t]his is the sixth time this has happened.” When asked at trial if she was “certain” of the number, she said, “yes.”
The prosecutor initially alleged 12 counts of lewd acts on a child but dismissed the count arising from the Stockton incident before trial, for jurisdictional reasons.
Jane testified that the touchings were “sort of similar” in nature. When defendant touched Jane’s breasts, it was always in the same way. When defendant touched Jane’s vagina, it was usually over her clothes. Once he touched her vagina under her clothes. When he touched her vagina, he would “rub it.” Jane sometimes told defendant “no,” and he would “get mad.”
In December 2004, about six months before Jane told the police about the molestation, Jane told defendant’s wife. Defendant’s wife told Jane to scream and leave the room if defendant touched her again, and to go to the neighbors. After Jane told defendant’s wife about the touchings, defendant apologized to Jane by telling her he was “[s]orry.” Jane told the police that the molestation stopped after Jane told defendant’s wife, but she was still afraid to be left alone with defendant. At trial, Jane said the molestation stopped only temporarily and began again.
Defendant’s police statement
The police interviewed defendant after Jane came to the police station and reported molestation. At the start of the interview, defendant said he came to the station to pick up his “daughter,” but then said Jane was not really his daughter but his granddaughter. Defendant said he and his wife raised Jane and her brother as their children because the children’s mother was single and “never wanted to say who the father was.”
The police asked defendant why he thought Jane ran away from home, and defendant said it was because she had been misbehaving and knew she was going to be disciplined. The police told defendant that Jane said she ran away because defendant was touching “her private parts.” Defendant denied the accusation, and said that Jane said the same thing to his wife “some months ago.” Defendant told the police he asked Jane why she was making up stories about him and she did not respond.
The police told defendant that Jane was examined by a physician, and the exam results agreed with Jane’s account of being digitally penetrated. The police said they did not think Jane was lying and urged defendant to be honest. Defendant again denied molesting Jane. The police turned to Jane’s parentage, and said they knew defendant fathered Jane and her brother with his older daughter. Defendant then admitted being Jane’s biological father, and explained that Jane’s mother was his stepdaughter, not his daughter. Defendant said his stepdaughter was 18 when he had sex with her, and that they had sex only six times.
The police continued to press defendant to tell the truth about Jane, and defendant denied molesting her. The police asked defendant if he did something with her that could have been misinterpreted, and defendant said he would play wrestle with her. The police asked if defendant perhaps “accidentally touched her down there without intending to, playing?” and defendant said, “could be.” Defendant said he once apologized to Jane for touching her while playing, after his wife told him that the girl said he had touched her. Defendant said he went to Jane “with tears in [his] eyes” and said he was “sorry.” Defendant said: “It was playing, see, it was accidental.” Questioning continued, and the police asked defendant why an 11-year-old girl would say that her father touched her 12 times over the past year. Defendant said Jane could be imagining things, or holding a grudge because he had spanked her.
The police told defendant there would be a trial and a judge would decide his fate. They told defendant punishment for touching a child is not as severe as other crimes, and that it would be better for him to tell the truth. Defendant asked if it was better to say that he is guilty, to avoid trial. The police told defendant he should not say he is guilty if he is not guilty; he should just tell the truth. The police told defendant it was his “conscience” he had to live with, and defendant said, “my conscience is clear.”
Eventually, defendant said, “perhaps I did touch her playing.” The police asked if he ever “put [his] hand under her underwear and touch her down there [—] with [his] hand?” Defendant said: “I don’t remember” and “[i]t could be.” Further questioning led to admissions: “[Q.] “But there is the possibility that you put your hand inside, underneath her clothes? [A.] “There’s the posi—. There is the possibility. A seventy five percent [chance]. In any case, damn me for that. [Q.] . . . hm mm. So you did do it? [A.] Well, yes. [Q.] How many times did you do it? The girl says 12 times. What is your, your opinion? [A.] I think that’s too much. [Q.] How many times do think you put your hand in, your hand underneath her clothes? [A.] Underneath her panties? [Q.] Yes. [A.] About two or three [times].”
Defendant said he touched Jane while playing with the girl, with no “perverting” intention. The police asked if his finger ever penetrated the girl and defendant said, “I don’t remember that and, and it was never my intention.” The police asked if defendant might have accidentally “slipped a little,” and defendant said, “I don’t think so.” Defendant then asked the police: “Couldn’t you lend me a gun.” Asked why he wanted a gun, defendant said, “To kill myself.” Defendant explained: “I’d always say how can you touch your child that way. I’d just as soon shoot myself.” The police said: “So you wanted to commit suicide because you did touch your daughter that way?” and defendant replied: “No, I’ll say it again. It was playing but not . . . not with the mentality of, of raping her or anything like that.” Questioning continued: “[Q.] You think what you did is bad? [A.] Real bad. [Q.] Touching your daughter like this, two three times? [A.] [—] touching her is bad [—]. [Q.] Mm hm. What did you think when, when you touched the girl, the, the real honest truth as they say? [A.] I didn’t think anything. I just . . . did it.”
Defense evidence
Defendant’s brother and sister-in-law testified that they never saw defendant act inappropriately with Jane. The brother said defendant’s wife told him about Jane’s accusation in December 2004. According to the brother, defendant’s wife told him that Jane, when questioned about the touchings, “just laugh[ed]” and said one thing, then another.
On cross-examination, defendant’s brother admitted that he never mentioned this conversation to a defense investigator when interviewed before trial. The brother also admitted that he never asked Jane about abuse allegations, and the prosecutor explored why the brother, if he knew of the accusations, did not act. The prosecutor asked the brother if he was concerned when he supposedly heard accusations against defendant, and the brother said, “[o]f course, yes.” The prosecutor asked “And that concern was based in large part on [defendant’s] past having fathered children with a stepdaughter, yes?” Defense counsel objected on relevancy grounds, and the objection was sustained. In proceedings outside the jury’s presence, the court told the prosecutor it was improper to imply that defendant’s past conduct with his stepdaughter was being repeated with Jane. The court characterized the interrupted line of questioning as “an inappropriate prior bad act inquiry.” The prosecutor agreed not to pursue the line of questioning with defendant’s brother, but said the issue could arise when defendant testified. Cross-examination ended with defendant’s brother admitting that he never knew Jane to lie.
Defendant’s daughter from his marriage also testified at trial. She said defendant never molested her, and she never saw defendant act inappropriately with Jane. When cross-examined, the daughter said Jane was not known to lie. The daughter also admitted that she previously said, when questioned by an investigator, that she did not know whether to believe Jane or defendant. The daughter opined that defendant “has been a good person, a good father.”
Defendant’s trial testimony
Defendant testified in his own defense. Defendant denied molesting Jane and recanted his admissions to the police. Defendant testified that he has diabetic mood changes, was confused, and felt pressured by the police, and that is why he told them that he touched the girl two or three times under her panties. Defendant said he thought it would “make things faster” to “just accept guilt.” Defendant testified: “I thought that it was just one of those things like when you go to court for a traffic ticket, and you plead guilty and you pay a fine and that’s the end of it.” Defendant acknowledged at trial that he told the police he wanted a gun to shoot himself, but not because he was guilty. He testified that he wanted to kill himself because it was “very embarrassing” to find himself in a police station accused by his daughter.
Defendant testified that any touching of Jane was accidental or unintentional. He explained that he sometimes play wrestled with Jane, and once awoke to find himself hugging Jane after falling asleep drunk during a family visit to Stockton. It was after the drunken incident that Jane complained to defendant’s wife, and his wife confronted him. Defendant does not recall that night in Stockton, but does not believe he touched his daughter.
Defendant also testified on direct examination about his relationship with his stepdaughter. Among the details relayed, defendant testified that his wife reported him to the Mexican authorities (the family was living in Mexico) in 1996, when she learned of his relationship with his stepdaughter. The stepdaughter was about 23 years old at the time. Defendant testified that he was not arrested but served with a subpoena to answer “a legal action for a divorce” founded on charges of “adultery.” The charges were later dismissed.
The matter was explored further on cross-examination, and defendant said that the charges were dismissed after his wife “dropped those charges” because “the law would have required” both defendant and his stepdaughter to “go to jail.” The prosecutor also asked defendant how old his stepdaughter was when defendant started having sex with her. Defendant said his “affair” started with his stepdaughter when she was 17, and that she became pregnant the first time they had sex. Defendant also kept to his police statement that he had sex with his stepdaughter only six times.
The prosecutor cross-examined defendant extensively on his police statement and trial recantation. Defendant conceded, during direct examination, that he “lied” to the police about Jane’s parentage and other matters, and the prosecutor hammered that point during cross-examination. The prosecutor told defendant “you’re a liar,” and asked: “You began lying to the police from the moment you walked into the police department, correct?” Defendant replied that he was “pressured” to lie.
No defense objections or court rulings about defendant’s testimony concerning his relationship with his stepdaughter appear on the record until the conclusion of defendant’s testimony when, outside the jury’s presence, defense counsel stated: “I just wanted to put on the record my understanding of the Court’s ruling with respect to [the prosecutor’s] questions of [defendant] pertaining to [the stepdaughter]. [¶] I had not on the record objected when he was asking those questions because it’s my understanding the Court had ruled that under Evidence Code section 1108 [the prosecutor] would be allowed to inquire as to that relationship. [¶] So based on that understanding, I did not lodge an objection on the record.” The court responded: “And additionally, as long as it was to show predisposition, I think [Evidence Code section] 1101, it could be entered under that as well because the fact that [defendant] put into issue the conduct if it occurred was—may have been accidental, and it would show then intent or planning or motive or quite a few other things.”
Jury instructions
The parties did not request that the jury be instructed to consider defendant’s relationship with his stepdaughter as a sex offense showing disposition to commit sex offenses (Evidence Code section 1108), and none was given. (CALCRIM No. 1191.) An instruction on Evidence Code section 1101 (relationship used to show intent or lack of accident) was read to the jury, and that instruction expressly precluded use of defendant’s relationship with his minor stepdaughter to prove criminal disposition. (CALCRIM No. 375.)
As read to the jury, the instruction stated: “The People presented evidence of other behavior by the defendant that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts . . . [¶] If you decide that the defendant committed the acts, you may but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to commit the offenses alleged in this case or the defendant’s alleged actions were not the result of mistake or accident. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant’s credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit a crime. [¶] If you conclude that the defendant committed the acts, 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 any offense. The People must still prove each element of every charge beyond a reasonable doubt.” (Italics added.)
Closing statements
The prosecutor argued to the jury that “this case is one of credibility,” and emphasized evidence of Jane’s truthfulness. The prosecutor contrasted evidence that Jane was never known to lie with evidence of defendant’s dishonesty, noting that defendant had a secret affair with his minor stepdaughter and lied to the police about Jane’s parentage. The prosecutor, referring to defendant’s conduct with his stepdaughter, said defendant has a “desire for young pleasure” but then turned to the specifics of Jane’s testimony.
The defense agreed that the case turned on credibility, and argued that Jane lied because she was going to be disciplined for misbehaving. Defense counsel referred to evidence of defendant’s relationship with his stepdaughter, and reminded the jurors that defendant “is not on trial for that relationship. [¶] You were allowed to hear details about that relationship only because that evidence may be used by you to determine his credibility. It may be used by you to determine whether or not he had the specific intent in the charged offenses to commit lewd and lascivious acts on (Jane). [¶] And whether or not it tends to show that, if there was any touching by [defendant], it was not an accident. [¶] What you cannot use that evidence to do is to say [defendant] is a bad person, [defendant] is a person who commits crimes against minor females. That’s exactly what you cannot use that evidence to do. [¶] And that was the purpose of the instruction that the Judge gave you, that you can’t use that evidence that way.”
On rebuttal, the prosecutor agreed that evidence of defendant’s relationship with his stepdaughter was introduced for a limited purpose. The prosecutor told the jurors: “Don’t make anything out of the past relationships of [defendant] because that only goes to what his intent is, his credibility, believability, those kind of things.” The prosecutor then focused on defendant’s credibility, and Jane’s credibility.
Verdict and sentencing
The jury convicted defendant of 11 counts of lewd and lascivious acts upon a child under age 14. (Pen. Code, § 288, subd. (a).) The court sentenced defendant to 20 years in prison, as follows: the middle term of six years on count one, and consecutive two-year terms (one-third the middle term) on counts two through eight. (Pen. Code, §§ 288, subd. (a), 669, 1170.1, subd. (a).) Counts nine through eleven were made concurrent.
DISCUSSION
Defendant’s primary complaint on appeal is that the court erred in admitting the “inflammatory” evidence that Jane’s mother is defendant’s stepdaughter, and that defendant had sexual relations with his stepdaughter when she was 17 years old. Defendant contends that evidence of defendant’s sexual relations with his minor stepdaughter was admitted for two purposes: (1) as a prior sex offense to prove his disposition or propensity to commit sex offenses (Evid. Code, § 1108; Pen. Code, § 261.5, subd. (a)), and (2) as a prior act of misconduct offered to prove intent and absence of accident when touching Jane (Evid. Code, § 1101, subd. (b)). Defendant argues that the evidence was wrongly admitted under these two provisions, and challenges the constitutionality of Evidence Code section 1108. The People defend admission under Evidence Code section 1108, which permits admission of prior sex offenses as propensity evidence.
Generally, evidence of prior crimes or other misconduct is inadmissible to prove criminal disposition or propensity. (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 910-911.) Such evidence may be admitted when relevant to prove some fact (such as intent, plan, or absence of accident) other than the defendant’s disposition. (Evid. Code, § 1101, subd. (b).) There are exceptions to the general rule precluding use of prior crimes to prove disposition. Prior sex offenses may be used to prove an accused sex offender’s criminal propensity. (Evid. Code, § 1108; Falsetta, supra, at pp. 911-922.)
We conclude that the disputed evidence here was not admitted to show propensity, and thus Evidence Code section 1108 is irrelevant on appeal. The disputed evidence of defendant’s sexual relations with his stepdaughter was admitted to prove intent and lack of accident in his relations with his daughter, Jane. (Evid. Code, § 1101, subd. (b).) The evidence was also introduced as basic background information (to explain Jane’s parentage and household relationships), to impeach defendant’s credibility given his inconsistent statements to the police about parentage, and to rebut evidence of defendant’s character adduced by the defense. (Evid. Code, § 1102, subd. (b).) The trial court did not err in admitting the evidence on these grounds.
The evidence was not admitted to show propensity under Evidence Code section 1108
While the record is somewhat ambiguous, we disagree with the parties’ view that evidence of defendant’s sexual relations with his stepdaughter was admitted as a prior sex offense offered to prove a propensity to commit sex offenses. The record contains no indication that the prosecutor ever notified defense counsel of any intention to introduce evidence of a prior sex offense. (Evid. Code, § 1108, subd. (b); see People v. Falsetta, supra, 21 Cal.4th at p. 911 [code “provides for pretrial notice to defendant of the evidence to be offered”].) Pretrial proceedings make no mention of any intention.
The first mention in the record of defendant’s relationship with his stepdaughter occurred during the testimony of defendant’s wife, when the evidence was introduced to explain household relationships. Defendant’s wife did mention that she “filed a report with the prosecutor’s office” in Mexico to inform them of the relationship. But this “report” was filed in 1996, when the stepdaughter was about 23 years old. While defendant’s wife made vague references to “bail” that was never posted because the “charges” were dismissed, defendant later refers to the charges as “a legal action for a divorce” founded on “adultery.” At no point in the trial does the prosecutor refer to defendant’s stepdaughter relationship as a sex offense, nor mention Penal Code section 261.5, which outlaws sex with minors.
The possible use of defendant’s stepdaughter relationship to show criminal propensity was not addressed directly until after the prosecution rested its case. The defense began its case with the testimony of defendant’s brother. On cross-examination, the prosecutor asked if the brother’s concern about Jane’s accusations of molestation was based on the fact that defendant had fathered children with a stepdaughter. Defense counsel objected. In proceedings outside the jury’s presence, the court noted that defendant’s stepdaughter relationship was “a subject that’s been hanging over the trial” and cautioned the prosecutor against suggesting that defendant had a disposition toward sex with underage girls. The court told the prosecutor it was improper to imply that defendant’s past conduct with his stepdaughter was being repeated with Jane. The court characterized the interrupted line of questioning as “an inappropriate prior bad act inquiry.” The prosecutor agreed not to pursue the line of questioning with defendant’s brother, but said the issue could arise when defendant testified. The prosecutor said it might be proper to ask defendant if he touched his stepdaughter and Jane in the same way. The court said: “We’ll cross that bridge when we come to it.”
Unfortunately, it is not altogether clear how the court crossed that bridge when it came up in defendant’s testimony. Defendant testified in his own defense, and details of his relationship with his stepdaughter were presented on direct examination. Those details included defendant’s testimony that his wife reported him to the Mexican authorities when she learned of his relationship with his stepdaughter. The matter was explored further on cross-examination. The prosecutor asked defendant how old his stepdaughter was when defendant started having sex with her. Defendant said his “affair” started with his stepdaughter when she was 17.
It is not until after defendant’s testimony, in proceedings outside the jury’s presence, that there is any indication in the record that the testimony elicited on cross-examination was being used to show criminal propensity under Evidence Code section 1108, or that defense counsel objected. At the conclusion of defendant’s testimony, defense counsel stated: “I just wanted to put on the record my understanding of the Court’s ruling with respect to [the prosecutor’s] questions of [defendant] pertaining to [the stepdaughter]. [¶] I had not on the record objected when he was asking these questions because it’s my understanding the Court had ruled that under Evidence Code section 1108 [the prosecutor] would be allowed to inquire as to that relationship. [¶] So based on that understanding, I did not lodge an objection on the record.” The court responded: “And additionally, as long as it was to show predisposition, I think [Evidence Code section] 1101, it could be entered under that as well because the fact that [defendant] put into issue the conduct if it occurred was—may have been accidental, and it would show then intent or planning or motive or quite a few other things.”
The “other things” the evidence could show include motive and a common design or plan. (Evid. Code, § 1101, subdivision (b); People v. Ewoldt (1994) 7 Cal.4th 380, 401-402.).)
While this exchange shows the court initially ruled that evidence of defendant’s sexual relationship with his stepdaughter could be introduced under Evidence Code sections 1101 and 1108, something occurred (again unreported) between the time of that ruling and submission of the case to the jury that withdrew Evidence Code section 1108 as a basis for admission. Defendant’s testimony, and the judge’s ruling on Evidence Code section 1108, came at the end of the trial, just before jury instructions and closing statements. The morning after defendant testified, the trial judge met with counsel to discuss jury instructions. The discussion, which lasted about an hour, was not reported and its substance was not memorialized in the court minutes. It was apparently agreed or determined that defendant’s stepdaughter relationship would not be used as a prior sex offense to prove criminal propensity under Evidence Code section 1108 because the jury was specifically instructed not to consider the evidence for that purpose, and the attorneys’ closing arguments focus on other uses for the evidence. Reading the record as a whole, we conclude that the disputed evidence was not admitted to show propensity under Evidence Code section 1108. Accordingly, we do not address defendant’s challenge to that provision.
Trial courts must take care to provide an adequate record for appellate review by having the court reporter transcribe substantive discussions or, at a minimum, by memorializing significant proceedings and rulings in the court minutes.
The evidence was properly admitted under Evidence Code section 1101
We now come to defendant’s contention that evidence of defendant’s relationship with his teenaged stepdaughter was wrongly admitted under Evidence Code section 1101. As noted above, evidence of a defendant’s prior misconduct may be admitted into evidence when relevant to prove some fact, such as intent or lack of accident. (Evid. Code, § 1101, subd. (b).) “On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.” (People v. Carter (2005) 36 Cal.4th 1114, 1147.) We find no abuse of discretion.
“In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar [to the charged offense] to support the inference that the defendant ‘ “probably harbor[ed]” ’ the same intent in each instance.” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) Defendant argues on appeal that his uncharged misconduct of sexual relations with his 17-year-old stepdaughter is not sufficiently similar to the charged offense of lewd acts with his 11-year-old daughter to allow an inference of common intent because the girls were different ages and one was not biologically related to him.
The claimed dissimilarities are vanishingly thin. Both the uncharged and charged misconduct concern young girls living in his household in a father-daughter relationship. Moreover, “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .” (People v. Ewoldt, supra, 7 Cal.4th at p. 402, citing 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 302, p. 241.)
The intent required to prove a violation of Penal Code section 288 is “the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of the perpetrator or victim. “Criminal intent will rarely be shown by direct evidence and must frequently be inferred from a defendant’s conduct. . . . Intent may properly be inferred from evidence of other specific acts of a similar nature” admitted under Evidence Code section 1101, subdivision (b). (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) In Gilbert, the court held that evidence of defendant’s sexual conduct with other young girls was relevant to proving defendant acted with lewd intent on the charged offense. (Ibid.) The same is true here.
Defendant counters that, even if admissible under Evidence Code section 1101, the trial court abused its discretion in admitting evidence of defendant’s sexual relationship with his stepdaughter because the evidence was more prejudicial than probative. (Evid. Code, § 352.) We reject the contention. The evidence was highly probative of intent and lack of accident, two matters defendant placed in issue by pleading not guilty; telling the police he touched his daughter playfully without any “perverting” intention; and testifying that any touching was accidental. Evidence that defendant previously had sexual relations with a young girl he was parenting had a strong tendency to show that defendant touched his daughter Jane with lewd intent, and not accidentally.
“The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense.” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Here, the evidence was wholly independent, as defendant’s sexual relations with his stepdaughter occurred years earlier. The account of those events was not influenced by knowledge of the charged offenses and was corroborated by the birth of two children. While the elapse of years between defendant’s misconduct with his stepdaughter and the charged offenses lessens its probative value, similarly remote misconduct has been held admissible. (Id. at p. 405.)
We recognize that the evidence had some potential for undue prejudice. Because uncharged misconduct goes unpunished, a jury may be inclined to punish a defendant “for the uncharged offenses, regardless whether it considered him guilty of the charged offenses.” (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) Any such inclination is lessened here, where the jury was never clearly told that sex with a 17-year-old girl is a crime. Nor do we agree with defendant’s assessment that evidence of infidelity with his stepdaughter was “extremely inflammatory.” Defendant’s conduct with his stepdaughter between the ages of 17 and 23 was far less inflammatory than the evidence of his conduct with his biological daughter Jane when she was only 11 years old. There was also no danger of “confusing the issues” by asking the jury to determine if the uncharged misconduct actually occurred, nor of consuming a significant amount time presenting evidence to prove the misconduct. Defendant did not deny having a sexual relationship with his stepdaughter, and the proof was manifest in Jane’s existence as his daughter.
The evidence of defendant’s sexual relations with his stepdaughter was properly admitted to prove intent and lack of accident in his relations with his daughter, Jane. (Evid. Code, § 1101, subd. (b).) We note that the evidence, or at least portions of it, was also properly admitted as basic background information (to explain Jane’s parentage and household relationships), to impeach defendant’s credibility given his inconsistent statements to the police about parentage, and to rebut evidence of defendant’s character adduced by the defense. (Evid. Code, § 1102, subd. (b).) The trial court did not err in admitting the disputed evidence.
The prosecutor properly alleged separate counts of lewd acts instead of a single count of continuous sexual abuse
Defendant raises a second claim on appeal. He claims that the prosecutor improperly charged him with 11 separate counts of lewd acts with a child (Pen. Code, § 288, subd. (a)), instead of a single count of continuous sexual abuse (Pen. Code, § 288.5). The claim is untenable. A prosecutor has wide discretion concerning the type and number of crimes to charge. (People v. Cortes (1999) 71 Cal.App.4th 62, 79.) “Prosecutors in sexual abuse cases possess a variety of means to seek convictions and severe punishments in cases involving sexual offenses against vulnerable young victims.” (People v. Johnson (2002) 28 Cal.4th 240, 248.) Prosecutors are free to “plead and prove discrete sexual offenses and seek consecutive sentencing,” as done here, or “they may bring a charge of continuous sexual abuse.” (Ibid.) The decision rests with the prosecutor.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.