Opinion
H024620.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO HERNANDEZ TOVAR, Defendant and Appellant.
Under an information filed in 2001 charging crimes committed in 1994, the trial court convicted defendant Alberto Hernandez Tovar of committing a lewd act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) It found that the six-year statute of limitations ( § 800) had been tolled, extended, or revived by section 803, subdivision (g) (hereafter subdivision (g)). Defendant contends that the corroborative evidence required by subdivision (g) was insufficient. We disagree and affirm the judgment.
Further unspecified statutory references are to the Penal Code.
Generally speaking, subdivision (g) allows the People to charge specified sexual offenses within one year after the victim reports the crime to police, even though the statute of limitations has otherwise expired, provided (1) the crime involved "substantial sexual conduct," and (2) the victims report is "clearly" and "convincingly" corroborated by independent admissible evidence. Evidence of similar uncharged sexual offenses by the defendant may, standing alone, constitute corroboration under subdivision (g). (People v. Mabini (2001) 92 Cal.App.4th 654, 659.)
BACKGROUND
Defendant was a family friend of the seven-year-old victim. During a barbecue, he took the victim into his bedroom, forced her on her knees, and penetrated her vagina with his finger. The victim spent the night at defendants home. In the morning while she was sleeping on the couch, defendant maneuvered behind her and similarly penetrated her vagina.
Defendants 23-year-old niece testified to the following: she spent the night at defendants home when she was in sixth or seventh grade; she was sleeping on her back in a bed with her cousin (defendants daughter); she awoke at 4:00 oclock in the morning and saw defendant; defendant had his hands on the blanket that was over her; one hand was rubbing her thigh and the other hand was on her stomach trying to reach closer to her upper chest; she confronted defendant, and defendant said that he was looking for batteries; and she had awakened on other sleep-over occasions to see defendants face in front of her face.
In announcing its verdict, the trial court stated that "The testimony of [the niece] shows that the defendant engaged in a similar incident under similar circumstances, finding a child in his home asleep who he was not related to. The touching was somewhat similar, and there was nothing suggested to discredit [the nieces] testimony in this courtroom yesterday. In my view, her testimony is, in fact, independent evidence that clearly and convincingly corroborates [the victims] testimony, and I find it sufficient for the requirement of [section] 803[, subdivision] (g) of the Penal Code."
In denying defendants motion to vacate the verdict grounded on insufficient corroborative evidence, the trial court further explained as follows.
"It seems to me that the evidence was that the acts were remarkably similar. First of all, both victims were, in fact, family or what clearly passes as a family relationship; one was a niece of the defendant, and the victim . . . was the daughter of the defendants compadre, which is described by the child as a very close relationship between the families. Both assaults occurred at the defendants house. That was clearly my understanding. The gathering where [the victim] was molested was a gathering at the defendants house, where he brought her into the bedroom, molested her there, and later she slept in the living room and a second molest occurred in that room. Both assaults, both against [the victim] and against [the niece], occurred when the victims were sleeping or in bed. Both assaults involved a lewd touching-clearly the digital penetration of [the victim]-but a touching as to [the niece] involved a touching on the thigh, rubbing on the stomach, trying, according to [the nieces] testimony, to move the hand up to her chest; again, as I stated, clearly a lewd act in each instance. The offense against [the niece] occurred in either 1991 or 1992, I believe, based on her testimony. She was 23 years old, and this occurred when she was in sixth or seventh grade. So by computing back, it looks like it happened in 1992 or 1991. The acts against [the victim] roughly happened in 94. [The victim] was younger when it happened, but [the niece] also was a young age. I think the similarities are remarkable, where the touching occurred and the circumstances. So, again, the evidence, in my mind, was certainly sufficient for a finding under [section] 803 . . . ."
DISCUSSION
Defendant contends that the nieces testimony was insufficient to satisfy subdivision (g)s requirement that the victims allegation be corroborated by clear and convincing evidence. He specifically urges that the acts committed on the niece were too dissimilar from the acts committed on the victim. He relies on People v. Mabini,supra, 92 Cal.App.4th 654, in which the court concluded that a reasonable trier of fact could find corroboration because the charged crime and corroborative offense shared many similarities (victims were related to the defendant; offenses occurred at one of the victims homes while the defendant resided there; victims were of similar age; both offenses involved touching the vaginal area). This analysis is erroneous.
""The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." [Citations.] [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. " (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
In People v. Yovanov (1999) 69 Cal.App.4th 392, the court rejected the defendants contention that uncharged sexual misconduct cannot provide the requisite corroboration. In doing so, it explained that the degree of similarity between the charged and uncharged offenses is a matter going to the probative value of the corroborative evidence rather than to the sufficiency of such evidence. The court stated as follows.
"Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. [Citation.] In fact, it is precisely because such evidence is so highly probative that traditionally it has been subject to exclusion as improper character evidence in criminal trials. [Citation.] Recently, however, the Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. . . . [Citations. ] [P] Accordingly, when a defendant is charged with a sexual offense, evidence of his or her uncharged sexual misconduct is no longer subject to the general prohibition against character evidence. (Evid. Code, § 1108.) With the enactment of [Evidence Code] section 1108, the Legislature "declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.". . . [Citation.] [P] Given the significant probative value of uncharged sexual misconduct in sex crimes cases, we find evidence of such can be used to corroborate a victims allegation of sexual abuse under section 803[, subdivision] (g). Of course, the precise probative value to be accorded this evidence will depend on various considerations, such as the frequency of the uncharged acts and their similarity and temporal proximity to the charged acts." (People v. Yovanov,supra, 69 Cal.App.4th at pp. 403-404, fns. omitted, italics added.)
Here, the niece testified about defendants uncharged sexual misconduct against her. This is sufficient corroboration if accepted by the trier of fact. (People v. Mabini,supra , 92 Cal.App.4th at p. 659.) Defendant was free to argue that the evidence lacked probative value as corroboration because the uncharged offense was not similar to the charged offense. (People v. Yovanov,supra, 69 Cal.App.4th at p. 404.)
Looking at the point slightly differently, defendants argument presupposes that past sex-offense evidence must share some distinctiveness with the charged offense in order to be similar. This type of argument was explained and rejected in People v. Nible (1988) 200 Cal. App. 3d 838, 849-850, 246 Cal. Rptr. 119, as follows: "An example best illustrates the irrelevancy of distinctiveness to the chain of inferential reasoning leading from a prior crime to the defendants intent during the charged crime. Had defendant used a blow torch to remove the window screens of his prior two victims, and had there been evidence of the use of a blow torch [in the instant case], then the distinctiveness of defendants method of entry would be highly probative on the issue of the identity of the person who entered [the victims] apartment. However, where the issue is intent, rather than identity, the evidence of blow[-]torch entry adds little or nothing to the determination of defendants intent on either occasion. [P] In this case, distinctiveness is irrelevant to the chain of inference leading from defendants prior crimes to his intent at the time he committed the instant offense. In the prior crimes, defendant entered the open bedroom windows of women at night after removing their window screens. During one of the crimes, he placed his hand on the victims vagina. During the other, he touched the victim on the shoulder and continued to move toward her, although she screamed, until another member of the womans household scared him away. Neither crime is so distinctive that it gives rise to the inference defendant was the same person who entered [the victims] apartment [in this case]. However, both prior offenses give rise to a strong inference defendant intended to rape the victims or to commit some other felonious sexual crime. In the instant case, defendant was caught in the midst of the same preparatory acts used during the commission of the earlier offenses. Although the circumstances were not distinctive, they nevertheless shared substantially similar characteristics to warrant the inference defendants intent was the same on each of the three occasions. The prior offenses are therefore substantially relevant to the material fact of defendants intent at the time of the commission of the instant offense."
In our context, the value of corroborative evidence necessarily depends on its force in showing a defendants intent. Here, although the uncharged and charged offenses were not distinctive, the shared characteristics highlighted by the trial court were substantially similar to warrant the inference that defendants intent was the same on each occasion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. and Bamattre-Manoukian, J.