Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14332
Mihara, J.
Defendant Marlon Ontiveros Solis appeals from a judgment of conviction entered after a jury found him guilty of two counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a) - counts 1 & 2) and one count of failing to register as a sex offender (Pen. Code, § 290 - count 3). In a bifurcated proceeding the trial court found that defendant was subject to the one strike provision pursuant to Penal Code section 667.61, subdivisions (a) and (d)(1) because he had suffered a prior conviction of forcible sodomy (Pen. Code, § 286, subd. (c)) in 1995. The trial court also found that defendant had suffered a prior strike conviction pursuant to Penal Code sections 667, subdivisions (b)-(i) and 1170.12. The trial court sentenced defendant to state prison for an indeterminate term of 50 years to life consecutive to a determinate term of six years.
On appeal, defendant raises several issues relating to the admissibility of evidence. He also contends that the trial court improperly withheld disclosure of psychiatric records. We find no error and affirm.
I. Statement of Facts
A. Lewd Acts -Counts One and Two
Alberto N. lived with his wife Maria M. and their five children in a townhouse in Watsonville. Defendant, who is one of Alberto N.’s relatives, began living with the family in October 2006. Defendant stayed in nine-year-old T.N.’s bedroom, and she shared a bedroom with her two brothers, A.N. and F.N. T.N. slept in the top bunk with F.N., while A.N. slept in the bottom bunk. The seven-month-old baby slept in her parents’ bedroom, while I.N., the oldest son, slept in another bedroom.
On November 16, 2006, defendant went out for the evening, and the family went to bed around 10 or 11 p.m. Sometime after 11:15 p.m., F.N. went to his parents’ bedroom, used his asthma inhaler, and spent the rest of the night in his parents’ bedroom.
T.N. testified that someone entered and touched her “private parts” while she was sleeping that night on the top bunk bed. T.N. turned around, saw defendant, and asked him, “What are you doing here?” T.N. then told him to stop and tried to tuck the sheets under her body. When defendant told her to go to his room, she refused. Defendant got onto her bed and continued to touch her “[i]n [her] private part on [her] bottom.” Defendant then attempted to pull down her pants. T.N. was scared, because she believed defendant “was going to do something to [her].” At that point, however, her mother entered the bedroom.
Maria M. testified that she was awakened by her baby’s crying. As she was walking downstairs to get a bottle for her, she noticed that defendant’s door was shut and there appeared to be either a light or television on inside the room. When she came back upstairs, she heard crying and someone saying in Spanish, “ ‘be quiet.’ ” She opened the door to the bedroom where A.N., F.N., and T.N. slept and turned on the light. She saw defendant in bed with T.N. He was wearing burgundy underwear and his shorts were pulled down to the middle of his thigh. T.N. was crying. When she asked what he was doing, defendant replied that he had heard T.N. cry. T.N. told her that what defendant said was not true. Defendant “started to get mad, ” and began yelling at T.N. Maria M. went to her bedroom and woke Alberto N., who went to the children’s bedroom and saw defendant lying in bed with T.N. Alberto N. told defendant to get down. T.N. was frightened and shaking. Defendant claimed that T.N. was lying, and Alberto N. told him to leave the house. Maria M. took T.N. into the master bedroom because she thought “things were going to get physical” between her husband and defendant. T.N. told her mother what defendant had done to her while defendant banged on the bedroom door, “saying whatever [T.N.] was saying, it was not true.” Maria M. called 911 five to 10 minutes after she took T.N. into the master bedroom.
The police were contacted at approximately 12:50 a.m. and arrived at the scene “[w]ithin a minute.” When defendant was arrested nearby, he identified himself by using a false name. He was also carrying a social security card and printout from the Department of Motor Vehicles with the false name.
B. Uncharged Offense - Forcible Sodomy of Ricky M.
Ricky M. testified that he lived in Modesto with his family in 1994. At that time, he was 14 years old and defendant was his mother’s live-in boyfriend. After Ricky M. and defendant had an argument, defendant apologized to him and hugged him. However, as Ricky M. tried to pull away, defendant held him. Defendant then forced him into the bedroom, pulled down his pants, and sodomized him. Though Ricky M. yelled at defendant to stop, defendant ignored him. No one else was home when the sexual assault occurred.
A certified copy of defendant’s conviction for the 1994 forcible sodomy of Ricky M. was admitted into evidence.
C. Failure to Register as a Sex Offender - Count Three
Though defendant began living with the Alberto N.’s family in Watsonville in October 2006, defendant never registered as a sex offender with the Watsonville Police Department.
D. Defense Case
Defendant testified on his own behalf. He went to T.N.’s room because he heard someone crying. He asked her if she was okay, but he did not get into her bed, touch her, or try to remove her pants. He denied that he sexually assaulted her. When he told the police “that girl is crazy and uses drugs, ” he was referring to Maria M. He could not explain why Maria M., T.N., and Alberto N. accused him of the sexual assault.
Defendant also denied that he sodomized Ricky M. He explained that they argued after defendant told Ricky M. that he would not give him money or marijuana. Defendant was arrested five days later.
Defendant testified that he did not remember signing the sex registration advisement form, though he acknowledged that his signature was on the form. He explained that the contents of the form were never explained to him and he was unaware of the registration requirement.
II. Discussion
A. Admissibility of Evidence of T.N.’s Knowledge
Defendant contends that the “exclusion of T.N.’s allegation of a classmate being molested prevent [him] from discrediting her.”
Prior to trial, defendant sought the admission of evidence of an incident that occurred on September 25, 2006, when T.N. told a police officer that her friend told her that a teacher had touched little girls “ ‘private parts.’ ”
Defense counsel argued: “The fact that just... two months earlier -- she was reporting having heard that same type of information about a teacher at school and relating that to a police officer shows that this young lady or young girl has had exposure to that type of language, has had exposure that type of incident and obviously, based upon what you’ve seen in the paperwork, my client is denying that any of this occurred.”
“And the fact that she’s talking about having heard this from other individuals, that this is happening in context over in her school that allegedly this teacher, ... whether it’s true or not, the issue is whether she had heard this information so this type of conduct is implanted in her mind so that when she deals with something inappropriate or whatever’s happening with regard to my client Mr. Solis on the date and time in question charged in this case, here is this previous information similar to like parents teaching children about inappropriate touching, which I think are legitimate areas of inquiry to show that many jurors will think -- changes thoughts here -- jurors would at least know she had prior exposure. This is not something just coming out of the blue. Nothing that happened to her specifically. It’s what she had heard. So in a way you can -- she’s transferring to what she has heard previously and implanting it to the conduct of Mr. Solis. She misinterprets. So she’s using words similar to what you just used two months earlier. I think that is relevant to sort of show the background of this child’s intelligen[ce]. Again, I’m not saying this happened to her school teacher at all. This is something she heard about, communicated it to her mother and communicated it to this police officer.”
“And I think knowing that background, and to what she has already talked about, what verbally she has been exposed to when a full picture to understand what was going on in this young lady’s mind, young girl’s mind, and what could be misinterpreted. That’s my feeling. And I think it’s relevant.”
“[PROSECUTOR]: She uses completely non-remarkable language. Language that is completely appropriate for a child her age. ‘Private parts.’ I mean, what is she supposed to say? It just doesn’t have -- of course she knows what private parts are. She demonstrates that when she speaks to the police in this matter. And it just doesn’t -- it’s just of no moment the fact that she heard this. In fact, she responded just appropriately and she had no personal knowledge. She heard something that troubled her. Understandably and appropriately troubled her and she did the appropriate thing with that information. I don’t think it goes to her credibility at all.”
“THE COURT: I agree. I really don’t feel that this evidence is going to assist the jury or the trier of fact at all in evaluating the credibility of [T.N.]. [¶] I really feel under Evidence Code section 352 this evidence will actually be more confusing to the jury and will actually be misleading. [¶] So I find that its probative value is far outweighed b[y] its prejudicial value in considering the effect it would have and the limited [e]ffect it would have on the credibility.”
Later, defense counsel questioned T.N. as follows: “Now, you’ve used the word, ‘private parts’ here in your testimony. [¶] [T.N.]: Yes. [¶] [DEFENSE COUNSEL]: Who taught you about private parts? [¶] [PROSECUTOR]: Objection. Assumes facts not in evidence. [¶] THE COURT: I’m going to sustain as vague and maybe you can rephrase it. [¶] [DEFENSE COUNSEL]: You’ve described here today about Mr. Solis touching your private parts. [¶] [T.N.]: Yes. [¶] [DEFENSE COUNSEL]: Before November 17, 2006, had anybody talked to you about private parts? [¶] [PROSECUTOR]: Objection. [¶] [DEFENSE COUNSEL]: Using those words. [¶] [PROSECUTOR]: I’m going to object, Your Honor. [¶] THE COURT: Calls for hearsay anyway. [¶] [DEFENSE COUNSEL]: Doesn’t call for hearsay. Anybody talked to her about that. If we can approach? [¶] THE COURT: Yeah. [¶]... [¶] THE COURT: I understand. I think the question that I was going to ask before you guys asked to approach was had you ever heard the expression ‘private parts’ and -- [¶] [PROSECUTOR]: Of course she has. It’s like asking somebody in a forest, you ever heard the word ‘tree’? We know what trees are. Who taught you the word ‘tree’? How the hell do I know. [¶] [DEFENSE COUNSEL]: I’m sorry. I think that’s a legitimate question in a case like this. Who taught you about private parts? [¶] [PROSECUTOR]: It’s a violation. It’s potentially a violation of the in [l]imine order not to. I mean he’s asking generally who, like where have you heard this word used? [¶] THE COURT: I don’t really want to go into that report about what her friend told her. [¶] [DEFENSE COUNSEL]: I think it’s absolutely totally a hundred percent relevant in this case. [¶] [PROSECUTOR]: How she knows the name of her genitals? [¶] THE COURT: As private parts. [¶] [PROSECUTOR]: As private parts? Every kid in the first grade know[s] what genitals and private parts are and at some point they transition to like anatomically correct words. [¶] [DEFENSE COUNSEL]: You know this is totally relevant. She’s the one throughout this case has described it as private parts as if something she was taught before and/or is this something law enforcement has talked to her subsequent? [¶] [PROSECUTOR]: Then ask her if she -- how she learned. [¶] THE COURT: Ask her how she learned the term ‘private parts.’ That’s what I would do. [¶] [DEFENSE COUNSEL]: I think there’s different ways to get to it. I don’t want to suggest any particular answer. [] THE COURT: Yeah, but who taught you? How did you learn the term ‘private parts’? That’s the words I was going to use. [¶] [DEFENSE COUNSEL]: That’s basically the question but on the other hand it’s -- [¶] THE COURT: How you phrase it. I’m not -- I’m going to keep that information out. I don’t think you’re going to be able to open that door but I don’t think that your question is phrased in a way, how did you learn about the term ‘private parts’? [¶] [DEFENSE COUNSEL]: You know I want to get into the situation back in September where she’s already verbalizing about private parts. [¶] THE COURT: Okay. Well I’m -- [¶] [PROSECUTOR]: The Court has excluded that. [¶] THE COURT: And that door really hadn’t been opened by her testimony here. [¶] [DEFENSE COUNSEL]: I think her mom, we can talk about that later. I believe the mom opened the door but we can get into that. [¶] THE COURT: Okay. Objection sustained as phrased. [¶] [DEFENSE COUNSEL]: You know where I’m going in connection with this. [¶] THE COURT: I do.”
Defense counsel then questioned T.N. as follows: “[DEFENSE COUNSEL]: With regard to the term ‘private parts, ’ where did you learn that term? [¶] [T.N.]: I don’t know. [¶] [DEFENSE COUNSEL]: You don’t know? [¶] [T.N.]: No. [¶] THE COURT: Do you remember -- [¶] [T.N.]: No. [¶] THE COURT: - where you might have heard it? [¶] [DEFENSE COUNSEL]: Prior to November 17, 2006, had you ever heard that term? [¶] [T.N.]: What do you mean? [¶] [DEFENSE COUNSEL]: I couldn’t hear you. I’m sorry. [¶] THE COURT: What do you mean? [¶] [T.N.]: What do you mean? [¶] [DEFENSE COUNSEL]: You’ve used here today in testimony the word ‘private parts’; correct? [¶] [T.N.]: Yes. [¶]... [¶] THE COURT: What [defense counsel] is asking what do you understand ‘private parts’ to mean? What parts of your body or a person’s body? [¶] [T.N.]: Between their legs. [¶] [DEFENSE COUNSEL]: Okay. When did you learn what you’ve just described between your legs? [¶]... [¶] THE COURT: Maybe ‘how old were you?’ [¶] [DEFENSE COUNSEL]: How old were you when you first learned that area between your legs was ‘private parts’? [¶] [T.N.]: Probably when I was ten. [¶] [DEFENSE COUNSEL]: That was after this incident? [¶] [T.N.]: Yeah. [¶] [PROSECUTOR]: I’m going to object. It’s a confusing question. I don’t think the witness understands. [¶] [DEFENSE COUNSEL]: Let me ask you this: From whom did you learn what ‘private parts’ meant? [¶] [T.N.]: From a friend. [¶] [DEFENSE COUNSEL]: And from the time you first met Mr. Solis, do you remember when you first met Mr. Solis? [¶] [T.N.]: Yeah. [¶] [DEFENSE COUNSEL]: What you learned from your friend about private parts? [¶] [T.N.]: Uh-huh. [¶] [DEFENSE COUNSEL]: Did you learn that from your friend before or after you met Mr. Solis? [¶] [T.N.]: It was I think after.”
After T.N. testified, defense counsel renewed his request to introduce evidence that Maria M. and a police officer had spoken to T.N. about “private parts” in connection with the allegations against the school teacher. Following argument, the trial court excluded the evidence, stating: “In fact what you two are talking about right now only reinforces this Court’s decision that under Evidence Code section 352 the Court’s evaluation of this evidence balancing the testimony of [T.N.] that I’ve just heard, the testimony of Maria, common usage and the evidence that’s being presented here, this Court finds that the evidence is being proffered would -- has far less probative value than is prejudicial, time consuming and misleading.”
Defendant argues that “[t]he evidence was admissible to show T.N.’s knowledge and willingness to make allegations of sexual misconduct and thus relevant to the credibility of her allegation against [defendant].” Noting that T.N.’s parents testified that they did not speak to her about “ ‘bad touching’ ” prior to the incident and T.N. testified that she learned the term “private parts” from a friend after she met defendant, which was in October 2006, he maintains that “[n]o evidence admitted at trial suggested she was as aware of sexual matters and as willing to make allegations of sexual misconduct. Instead, she was vested with a ‘false aura’ of lack of knowledge concerning sexual matters and of unwillingness to discuss such matters with adults.”
“The 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.” (Evid. Code, § 352.) This court reviews the exclusion of evidence pursuant to section 352 under the abuse of discretion standard. (People v. Hamilton (2009) 45 Cal.4th 863, 930 (Hamilton).)
All further statutory references are to the Evidence Code.
Here, evidence that T.N. told an officer that her friend told her that the teacher touched little girls “ ‘private parts’ ” did not tend to prove that T.N. was willing to make allegations of sexual misconduct. This evidence merely indicated that T.N. was willing to repeat what her friend had told her. Nor did the excluded evidence “rebut the inference a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge.” (State v. Jacques (Me. 1989) 558 A.2d 706, 708 (Jacques).) Jacques is distinguishable from the present case. In Jacques, the defendant was convicted of the sexual abuse of two children, who were five and 10 years old. (Jacques, at p. 707.) The defendant sought to introduce evidence that the children had previously been sexually abused by another “to rebut the inference that he was responsible for their unusual sexual knowledge” and to explore “the timing and other circumstances of the victims’ complaints against him in relation to complaints against others.” (Jacques, at p. 708.) In contrast to Jacques, here, T.N.’s testimony regarding the touching of her “ ‘private parts’ ” did not involve “unusual sexual knowledge” or have any relationship to other children’s allegations against the teacher.
Defendant also argues that the evidence was admissible as a prior inconsistent statement, and thus relevant to her credibility. (§ 780.) T.N. testified that she thought that she learned about “ ‘private parts’ ” after she met defendant, which was in October 2006. This testimony was inconsistent with her statement to the police regarding “ ‘private parts’ ” on September 25, 2006. At the time of trial, T.N. was 11 years old and recalling events that occurred approximately two and a half years earlier. That she remembered learning about private parts in October 2006 rather than at the end of September 2006 had negligible, if any, relevance to her credibility. Thus, the trial court did not abuse its discretion in excluding the evidence.
B. Admissibility of Evidence of Maria’s Misdemeanor Battery
Defendant next contends that the trial court erred in excluding evidence of the facts underlying Maria M.’s misdemeanor conviction for battery.
Prior to trial, defendant sought the admission of evidence of “the irrational and bizarre behavior” of Maria M., which was “the driving force behind the false allegations of child molestation.” In July 2004, two men confronted Maria M., brandished a knife, and demanded money. After she told them that she did not have any money, they left in a dark-colored Chevrolet Camaro. Maria M. did not report the incident to the police, and was unable to provide the location of the gas station or a description of the two men. Three weeks later, Maria M. saw a similar car, chased it, and “rammed” her car into the other car several times. She was convicted of misdemeanor battery in June 2005. Defendant argued that this evidence was admissible to show Maria M.’s “overreaction to things that would otherwise be fairly innocuous.” Defense counsel also argued that the evidence supported the defense theory that Maria M. influenced T.N. before the police were called. Noting that Maria M. was experiencing psychological difficulties at the time of the 2004 incident, the trial court excluded the evidence under section 352 because it was “ripe with the possibility of confusion, time consuming and a trial within a trial and ultimately substantially prejudicial and the jury will lose sight of the case before it.”
Section 350 bars evidence that is not relevant. “ ‘Relevant evidence’ means evidence, including the evidence relevant to the credibility of a witness..., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.) “Once there is evidence from which the trier of fact could find the charges true, evidence relating to the credibility of the witnesses becomes relevant and admissible.” (People v. Brown (2004) 33 Cal.4th 892, 908.) As previously stated, the trial court “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.” (§ 352.) This court reviews the exclusion of evidence under the abuse of discretion standard. (Hamilton, supra, 45 Cal.4th at p. 930.)
Here, the facts underlying Maria M.’s battery conviction, as presented in the police reports, had little, if any, probative value as to her “inability to accurately perceive events” or that “she overreacted and made unfounded allegations” in the present case. As the trial court noted, Maria M. was profoundly depressed when the incident occurred. There is nothing in the record to suggest that she was in a similar psychological state when T.N. was molested over two years later or when she testified at trial almost five years later. Moreover, Maria M.’s and the police officers’ testimony relating to the incident as well as any psychiatric testimony would have been unduly time-consuming and confused the issues. Accordingly, the trial court did not abuse its discretion in excluding the evidence.
C. Disclosure of Psychiatric Records
Defendant asks this court to review Maria M.’s psychiatric records to determine whether the trial court properly withheld disclosure of requested material.
Prior to trial, defendant subpoenaed Maria M.’s psychiatric records and requested that the trial court review them for information regarding her allegations of child molestation. After reviewing the records, the trial court stated: “Dominican Hospital records had also to do more specifically with the Welfare and Institutions Code 5150 hold in place and treatment. Natividad medical records and document, hospital records, detail Miss Maria M[.’s] acute depression that she was suffering from.... I did look specifically to see if there were any ideations, any specific areas where she was having thoughts about molestation, sexual molestation. [¶] The only record and evidence that I could find that had to do with that were taking a history of her where she did recount there had been some sexual abuse. But it’s really only very superficial and does not pertain to the particular issues of her concern that led her to be admitted into each of these medical centers.” The trial court then denied defendant’s request for disclosure of the records.
In People v. Hammon (1997) 15 Cal.4th 1117 (Hammon), the California Supreme Court declined to “extend the defendant’s Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information.” (Hammon, at p. 1128.) However, the court also recognized that “[w]hen a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon... to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve. [Citation.]” (Hammon, at p. 1127.)
After reviewing Maria M.’s medical records, we conclude that the trial court did not err in ruling that there was no information in these records that would have been relevant for impeachment or to support the defense theory.
D. Admissibility of Evidence of Maria M.’s Molestation
Defendant also contends that the trial court erred in excluding evidence that Maria M. had alleged that she had been molested when she was a child. He argues that “[e]vidence Maria was hypersensitive to molestation was relevant to explain the actions of Maria and T.N. It helped explain[] why Maria overreacted and misinterpreted events. It explained why T.N. was quick to believe [defendant] had been molesting her.”
Here, Maria M. walked into her nine-year-old daughter’s bedroom in the middle of the night to find that defendant, whose shorts were pulled down to the middle of his thigh, was lying in the top bunk with her daughter. That Maria M. had alleged that she was sexually abused as a child did not tend to prove that she misinterpreted or overreacted to what she observed that night. Nor did this evidence lead “to an inference that Maria convinced T.N. she was being molested.” Moreover, this evidence would have necessitated testimony regarding the details of Maria M.’s molestation and how it had affected her life, which had the potential of confusing the issues before the jury. Accordingly, we find that the trial court did not abuse its discretion in excluding this evidence under section 352. (Hamilton, supra, 45 Cal.4th at p. 930.)
E. Admissibility of Evidence of Defendant’s Prior Offense
Defendant argues that the trial court erred in admitting evidence of defendant’s 1994 sodomy conviction under both section 1101, subdivision (b) and section 1108.
Prior to trial, defendant moved to exclude evidence relating to his prior conviction for the forcible sodomy of Ricky M. under sections 352, 1101, and 1108. He argued that admission of the evidence violated his due process rights. The trial court ruled that the evidence was admissible under both sections 1101 and 1108. In exercising its discretion under section 352, the trial court found: the prior offense was no more inflammatory than the charged offense; there was no danger that the jury would confuse the issues; the prior offense was not remote in time; and the evidence would not be unduly time-consuming.
Section 1101, subdivision (a), which provides that evidence of a character trait is inadmissible to prove conduct on a specific occasion, is subject to two limitations. First, the trial court may admit evidence that a defendant has committed a crime, civil wrong or some other act to prove that certain facts, such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident....” (§ 1101, subd. (b).) Second, section 1101 itself provides that under certain enumerated sections, including section 1108, evidence of character is admissible. (§ 1101, subd. (a).) Thus, “[i]n 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.” (§ 1108, subd. (a).) Since we find that the evidence in the present case was admissible under sections 1108 and 352, we need not consider whether it was admissible under section 1101. (People v. Callahan (1999) 74 Cal.App.4th 356, 372.)
In considering the admissibility of section 1108 evidence, the trial court must “engage in a careful weighing process under section 352.” (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) Some of the factors to be considered include the prior sex offense’s “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.... [Citations.]” (Falsetta, at p. 917.) “This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Relying on People v. Harris (1998) 60 Cal.App.4th 727 (Harris), defendant first contends that his offense against Ricky M. was more inflammatory than the charged offense, thereby creating undue prejudice. In Harris, the charged offenses involved fondling and copulating a former consensual partner and an incapacitated woman, both of whom were on speaking terms with the defendant after the incident, while the uncharged conduct involved a beaten, bloodied, and sexually assaulted victim who appeared to be a stranger. (Harris, at pp. 731-734, 738.) Here, by contrast, both the charged counts of lewd and lascivious conduct and the uncharged forcible sodomy involved sexual offenses against children, both occurred while family members were unavailable to assist the child, and both involved attempted or completed sexual penetration. Though the present case did not involve force, it involved a nine-year-old girl, who the jury likely viewed as more vulnerable than a 14-year-old boy. Thus, here, the uncharged offense was no more inflammatory than the charged offenses.
To the extent that defendant argues that there were only superficial similarities between the charged offenses and the prior offense, we note that “[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough that the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, fn. omitted (Frazier); but see People v. Reliford (2003) 29 Cal.4th 1007, 1012 , fn. 1 [California Supreme Court has not yet decided whether uncharged sex offenses must be similar to charged sex offenses to support inference that the defendant has disposition to commit sex offenses].)
Defendant next focuses on the trial court’s statements at the sentencing hearing to support his claim that the uncharged offense was unduly prejudicial. The trial court commented that “[t]his case left a lasting impression on me. I think probably the testimony of the young man who came back 15 years later and had to relive this experience which has scarred him immeasurably for his entire life. It just rang with the Court.” Defendant, however, has omitted the trial court’s reference to the present case. The trial court then stated: “And not to say -- not even to discuss what happened with this nine year old girl who has to live with this for the rest of her life and far be it from luck and fortune that her mother happened in and interrupted this before it could go further. [¶]... The wreckage that you’ve left behind will take years and years to fix.” Thus, the trial court recognized the devastating effects of defendant’s conduct on both victims.
Defendant also argues that the 12-year gap between the charged and uncharged offenses was relatively remote. We disagree.
In People v. Branch (2001) 91 Cal.App.4th 274 (Branch), the court stated that “a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses.” (Branch, at p. 285.) However, the court also recognized that “significant similarities between the prior and charged offenses may ‘balance[] out the remoteness, ’ ” and held that a gap of 30 years was not too remote. (Branch, at pp. 284-285; see also People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [18-25 years not too remote].) Here, given that defendant served a six-year prison term after he committed the prior offense and the similarities between the offenses, the remoteness factor would not mitigate the admission of the uncharged offense.
In addition, defendant claims that the risk of jury confusion was great. He acknowledges that “[i]f the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at p. 284.) Defendant, however, posits that the “jury was left with the inescapable conclusion that he had not been punished enough for his past crime” because his failure to register as a sex offender allowed him to reside in T.N.’s home.
Here, since defendant was convicted of the prior offense, the jury was not required to determine whether it occurred. Regarding whether the jury might have wanted to impose additional punishment for the uncharged offense, we presume that it followed the instructions regarding reasonable doubt, the necessity of proof for each element of the charged offenses, and the limited purpose for which the uncharged offense was admitted. (Frazier, supra, 89 Cal.App.4th at pp. 41-42.)
Defendant next challenges the trial court’s assessment that admission of the evidence would not have been unduly time-consuming. Here, the testimony of Ricky M. and defendant relating to the uncharged offense consisted of only 22 pages of the reporter’s transcript. Though this evidence necessitated additional jury instruction and argument, we do not find that the uncharged offense permeated the trial.
In sum, the uncharged offense was similar to and not more inflammatory than the charged offenses. Nor was this offense remote in time. Since defendant had been convicted of the uncharged offense, it was unlikely to confuse, mislead or distract the jury from the issues in the present case. Moreover, admission of this evidence was not unduly time-consuming. Accordingly, the trial court did not abuse its discretion in admitting the uncharged offense.
Defendant also contends that section 1108 violates due process by making admissible evidence of prior sexual misconduct. The California Supreme Court rejected this claim in Falsetta, supra, 21 Cal.4th 903, and that decision is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Since we have found no error, we need not consider the issue of cumulative error.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.