Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC060021A
Pollak, Acting P. J.
Defendant Jose Pinon Urbina appeals from a conviction on four counts of touching two minors under the age of 14 with lewd intent, for which he was sentenced to imprisonment for a term of 15 years to life. He challenges the admission of evidence concerning a prior uncharged act for which he was previously tried and acquitted. Because the trial court erred in failing to reject evidence of the prior act under Evidence Code section 352 and it is reasonably probable that the jury would not have convicted him without that evidence, we must reverse the conviction.
Background
By felony complaint defendant was charged with committing four counts of lewd or lascivious acts on two girls both under 14 years of age. (Pen. Code, § 288, subd. (a).) It was alleged that each offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(6) and an offense specified in Penal Code section 667.61, subdivision (c), and that defendant committed the offenses against more than one victim in violation of Penal Code sections 667.61, subdivision (e)(5) and 1203.066, subdivision (a)(7).
The evidence at trial disclosed that the 30-year old defendant lived in the same apartment complex as Jane Doe 1,who was nine years old at the time in question, and her cousin Jane Doe 2, who was then eight.
Jane Doe 2 testified that on September 17, 2005, she was playing ball with her cousin at the apartment complex. They were approached by defendant, whom she had seen “seven or eight” times before. When asked at trial if she was “good friends” with defendant, she replied, “a little bit.” They played hide-and-go-seek with defendant. After Jane Doe 1 and defendant went to hide, Jane Doe 2 found them in the laundry room. Jane Doe 2 testified, “Me and Jane Doe No. 1 were grabbing some bars. Some pipes. And then Jane Doe No. 1 said, ‘Who is fatter,’ and then he touched us.” She said that he first touched Jane Doe 1’s stomach and then her own stomach. When Jane Doe 1 asked “who has a bigger butt,” he touched the girls’ buttocks.
Jane Doe 1 testified that on the day in question she was playing with her cousin at the apartment complex when they were approached by an adult man. They were playing basketball but then began to play hide-and-go-seek. She testified that Jane Doe 2 counted and that she and defendant went into the laundry room. She testified that she was surprised when defendant entered the laundry room with her and tried “to get out. And the man was behind me. And he grabbed me by the back and was putting me in the wash room.” She testified, “I didn’t want to go in with him, but he just went in and pushed me inside.” After he came in, he pushed the door, leaving it ajar by only an inch or two. She was scared. However, somewhat inconsistently, she also testified that she and defendant went to different places in the laundry room and that defendant did not touch her until after Jane Doe 2 came looking for them. Although acknowledging that at some point she had asked her cousin which of the two was skinnier, she denied that this occurred when defendant was present. After Jane Doe 2 opened the laundry room door, the two girls and defendant left the laundry room and started “playing behind some posts. And [defendant] was behind some other ones. And he just touched our stomach a little bit and our bottom.” Defendant had walked behind the girls, but they did not see him. He moved “very close,” about nine to twelve inches away, and touched both girls at the same time. He rubbed their stomachs with a cupped hand. He touched the girls for about three seconds. He then grabbed Jane Doe 1’s buttocks and “squeeze[d] a little.” “And then Jane Doe Number 2 asked if we could stay for just a little while, and then I said no.” After that, defendant moved to “a wall almost next to the stairs” and the girls went upstairs.
Jane Doe 1 testified that she had not seen the man before. When asked if she saw the man they were playing with in the courtroom, she said she did not.
The testimony regarding the location of defendant and the girls when the touching occurred is somewhat confusing. It appears that they may have moved to a lightwell or staircase in the apartment complex at the time of the physical contact.
Jane Doe 1’s older sister testified that on the day of the incident she was watching the two girls while they played at the apartment complex. She was standing on the stairs above the laundry room and overheard them talking about “who is skinnier.” She then saw defendant approach the girls. She heard defendant ask the girls “who has the bigger butt and then he touched them.” She saw him rub each girl’s stomach and then he “touched their butt.” She did not have a chance to intervene before she saw defendant touch them but when she saw him touch the girls’ buttocks she called to them “and I told them to get up.” She then went to her mother and reported what had happened.
Officer Chicas testified that on September 17, 2005, he interviewed defendant at the apartment complex. Defendant’s “initial response . . . was something to the effect of he was getting accused of somehow sexually assaulting one of . . . the girls at the scene. [¶] . . . [¶] . . . He told me he was . . . being wrongfully accused, that he hadn’t done anything.” Chicas then spoke with Jane Doe 1’s mother and returned to defendant. Chicas “told him that . . . I was given information that he had touched the girls in inappropriate ways, touched their stomachs and . . . bottoms . . . which he completely denied. And then I told him that they had also mentioned to me that he had hit one of them with a newspaper, which he had in hand. He admitted to having a newspaper in hand and admitted to hitting one of them on the bottom” with it. He also told Chicas that “he was coming up from parking his car, and he ran into the girls, and that one of them had asked them to play, and he started playing ball with them I believe he said in the carports. Then he said they started playing hide-and-go-seek.” Defendant told Chicas “that he would never think of disrespecting the kids . . . . He said he’d never think of disrespecting the family. He said he had been a longtime family friend of theirs for about two years from living in the complex. And he said, I would never do that to them, I would never do that to—and he gave me the first name of Jane Doe Number 1’s father, calling him on a first name basis.” “He denied touching them with his hands and said the only time he touched their bottoms was when he hit them with the newspaper, when he tapped them with the newspaper.”
Chicas did not arrest defendant but “gave the victims the option of placing him under citizen’s arrest if they believed they had been touched inappropriately,” which they did. Defendant was then taken into custody. During an interview at the jail, defendant stated that while they were playing ball, the girls asked him to take them to the park, and he told them he could not because it was late and they did not have permission from their parents. Defendant stated that when they began playing hide-and-go-seek, the girls hid while he counted. He found them, and they wanted to play again. This time one of the girls counted while defendant and the other girl hid. They hid on opposite sides of the laundry room. He stated that the girl had followed him into the laundry room after he suggested that she hide in the elevator while he went into the laundry room. After the other girl found them defendant stated that “that was it. That was the only thing, no more, I waited for my family to arrive.” However, he went on to say that he had played with the girls in the laundry room. He stated that he stood behind the girls and touched their stomachs. He denied touching the girls on their buttocks.
Prior to the start of trial, defendant made a motion under Evidence Code section 352 to exclude evidence of a prior lewd act on a minor, Jane Doe 3. Defendant had been charged and tried for such a crime, but had been acquitted. The prosecution moved to admit the evidence under sections 1101, subdivision (b) and 1108. The trial court denied defendant’s motion and granted the prosecution’s motion.
Further unspecified code sections refer to the Evidence Code.
Jane Doe 3 testified that in June 2003, when she was 10, she was living in East Palo Alto in an apartment complex. One day she was in the laundry room doing the washing with her brother and her cousin. Defendant entered the laundry room and told her that she looked like his daughter. She was sitting on a table and defendant sat next to her. When her brother and cousin were no longer in the laundry room defendant “got closer to me, and then he picked me up, and then he set me on his lap.” He then kissed her twice on the cheek. She then jumped off of his lap and “stood by the drier to wait for . . . it to finish drying.” Defendant then got off the table and began “grabbing his private[s].” She testified that defendant was rubbing himself in his genital area. This continued for “like five minutes.”Jane Doe 3 took her clothes out of the drier even though they were not yet dry and defendant told her “to not be lazy and to finish drying the clothing. “When she tried to leave the laundry room, defendant “tried to close the door. And that’s when my brother came back and he tried to open it.” She stated that defendant never removed his clothes or hers.
On cross-examination Jane Doe 3 admitted that she had testified at trial four years previously that defendant rubbed himself for “a short time,” and stated that she did not remember if it was “only one or two seconds” but that she would consider five minutes to be “a short time.”
Jane Doe 3’s brother testified that he saw defendant kiss his sister on her left cheek. He said that “she looked scared and freaked out.” He also saw defendant “rubbing his hands on my sister’s chest.” He went into the laundry room to try “to get him off of her.”
The jury found defendant guilty on all four counts. Defendant waived a jury trial on the allegations that he had committed a lewd act on more than one victim and the trial court found true as to count 4 the allegations under Penal Code sections 667.61, subdivision (e)(5), 1192.7, subdivision (c)(6), and 1203.066, subdivision (a)(7). The court sentenced defendant to 15 years to life on counts one and three, to be served concurrently, and stayed sentencing on counts two and four pursuant to Penal Code section 654. Defendant timely appealed.
Discussion
Evidence of prior incident
Defendant argues that the trial court erred in admitting the testimony of Jane Doe 3. He argues that the prior incident was not a “sexual offense” within the meaning of section 1108, that the evidence was more prejudicial than probative and should have been excluded under section 352, and that because the previous trial resulted in an acquittal the evidence should not have been admitted.
Penal Code section 288, subdivision (a) provides in relevant part: “Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Section 1101 provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108. and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
“Subdivision (a) of section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
Section 1108 provides an additional exception to the general rule of exclusion in section 1101, subdivision (a). It provides “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Initially, we reject defendant’s arguments that Jane Doe 3’s testimony was not admissible under section 1108 without regard to section 352. Defendant’s first objection is that the testimony concerning Jane Doe 3 did not describe a prior act of sexual misconduct within the meaning of section 1108 because the touching of Jane Doe 3 and defendant’s acts in touching himself, which provided the evidence that defendant touched Jane Doe 3 with a lewd intent, were not contemporaneous. He cites People v. Martinez (1995) 11 Cal.4th 434 (Martinez), in which the court addressed whether a violation of Penal Code section 288 requires a touching in an inherently lewd manner, as the defendant contended. The court rejected this interpretation of the statute and concluded that any touching performed with lewd intent is sufficient. (Id. at p. 442.)
While Martinez does support the proposition that the touching and the lewd intent must be contemporaneous, the case does not support defendant’s thesis that the acts that establish the lewd intent must occur at the same moment as the touching. “[T]hroughout [Penal Code section 288’s] history, the cases have made clear that a ‘touching’ of the victim is required, and that sexual gratification must be presently intended at the time such ‘touching’ occurs.” (Martinez, supra, 11 Cal.4th at p. 444.) “As the vast majority of courts have long recognized, the only way to determine whether a particular touching is permitted or prohibited is by reference to the actor’s intent as inferred from all the circumstances.” (Id. at p. 450.) “We reiterate that the circumstances of the touching remain highly relevant to a [Penal Code] section 288 violation. The trier of fact must find a union of act and sexual intent (see [Pen. Code,] § 20), and such intent must be inferred from all the circumstances beyond a reasonable doubt. A touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute. On the other hand, if the trier of fact is persuaded beyond a reasonable doubt, from all the circumstances, that the touching of a child was sexually motivated, nothing in the language, history, or purpose of [Penal Code] section 288 indicates that the touching should escape punishment simply because it might not be considered a means of sexual gratification by members of the mainstream population.” (Martinez, supra, at p. 452.)
Thus, although Jane Doe 3 testified that defendant did not touch himself until after he put her on his lap, the proximity in time of the two acts was sufficient to support an inference that he was acting with the intent to gratify his sexual desires when he touched her.
We also reject defendant’s contention that evidence of molestation of Jane Doe 3 should have been excluded because he was acquitted of that crime. This argument was rejected by People v. Griffin (1967) 66 Cal.2d 459, 464: “It is settled . . . that competent and otherwise admissible evidence of another crime is not made inadmissible by reason of the defendant’s acquittal of that crime.” (See also, e.g., People v. Mullens (2004) 119 Cal.App.4th 648, 663-665 (Mullens).) Defendant also argues that admission of evidence concerning that crime is barred by collateral estoppel and double jeopardy. These contentions also have been rejected. “[T]he collateral estoppel doctrine, which is a component of the Fifth Amendment’s double jeopardy clause [citation] [¶] . . . does not prohibit the admission of evidence that has been introduced in a trial resulting in an acquittal from being admitted for all purposes at a subsequent proceeding.” (People v. Catlin (2001) 26 Cal.4th 81, 123-124.)
Although the prior incident involving Jane Doe 3 thus constituted sexual misconduct that was otherwise admissible under section 1108, we believe that in this case the trial court abused its discretion in failing to exclude the evidence under section 352 because the evidence was substantially more prejudicial than probative. “The court in its discretion may 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.) “Prior to the enactment of . . . section 1108, evidence showing the defendant’s disposition was excluded ‘ “ ‘not because it has no appreciable probative value, but because it has too much.’ ” ’ ([People v.] Falsetta [(1999) 21 Cal.4th 903,] 915.) With the enactment of section 1108, however, trial courts may no longer deem such evidence unduly prejudicial per se, but must instead engage in a careful weighing process under . . . section 352. Thus, when the evidence is admissible, it may support an inference . . . that the defendant is predisposed to commit sex offenses.” (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.) “Regardless of its probative value, evidence of other crimes always involves the risk of serious prejudice, and it is therefore always ‘to be received with “extreme caution.” ’ ” (People v. Griffin, supra, 66 Cal.2d at p. 466.)
“Unlike evidence admitted under section 1101(b), which permits ‘the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act,’ section 1108 explicitly ‘allows bad conduct evidence to be admitted to prove “predisposition” to commit sex crimes.’ [Citation.] [¶] Because section 1108 involves evidence from which the trier of fact is permitted to infer both that the defendant has a predisposition to commit sex crimes and that as a result of this predisposition the defendant was likely to commit and did commit the charged sex offense [citation], such evidence must be received with the utmost caution. ‘ “A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.” ’ ” (Mullens, supra, 119 Cal.App.4th at p. 666.)
“[T]rial courts . . . must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
In People v. Ewoldt, supra, 7 Cal.4th at page 405, the Supreme Court noted that the probative value of uncharged crimes “would increase further if independent evidence of additional instances of similar misconduct, committed pursuant to the same design or plan, were produced.” However, the Ewoldt court continued, “On the other side of the scale, the prejudicial effect of this evidence is heightened by the circumstance that defendant’s uncharged acts did not result in criminal convictions. This circumstance increased the danger that the jury might have been inclined to punish defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses, and increased the likelihood of ‘confusing the issues’ (. . . § 352), because the jury had to determine whether the uncharged offenses had occurred.” (Ewoldt, supra, p. 405.)
In People v. Fitch (1997) 55 Cal.App.4th 172 (Fitch) the court rejected the argument that section 1108 unconstitutionally reduces the prosecution’s burden of proof with the following important observation: “section 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under . . . section 352. (. . . § 1108, subd. (a).) By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (. . . § 352.) This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause.” (Fitch, supra, at p. 183.) The Falsetta court likewise referred to section 352 as “a safeguard that strongly supports the constitutionality of section 1108.” (Falsetta, supra, 21 Cal.4th at p. 916.)
In this case, the testimony concerning the Jane Doe 3 incident was admitted to show defendant’s intent on the occasion of the charged offenses involving Jane Doe 1 and Jane Doe 2. As discussed below, this testimony was virtually the only evidence that tended to show that defendant had a lewd intent when he briefly touched their stomachs and buttocks. The circumstances of the two incidents shared some similarities: both involved girls of similar ages and both occurred around the laundry room of an apartment complex. However, there were also differences. In the incident involving Jane Doe 3, the evidence was that defendant picked her up and placed her on his lap, twice kissed her cheek and rubbed his hands on her chest. He then touched his genital area in a manner either suggesting or in fact performing masturbation. In the present case, the evidence was that defendant did no more than briefly “touch [the girls’] stomach[s] a little bit and [their] bottom[s].” There was no suggestion that he kissed the girls or touched himself in a lewd manner.
While the degree of similarity necessary to justify admission of a prior uncharged offense to show intent is less than when such evidence is admitted for other purposes, in order to be admissible to prove intent the uncharged misconduct must at least “be sufficiently similar 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.) Even assuming the charged offenses were sufficiently similar to support such an inference, the potential for prejudice was substantial. The extent of the touching of Jane Doe 3 was significantly greater than of either Jane Doe 1 or Jane Doe 2, and the offenses on trial involved no conduct as inflammatory as the apparent masturbation involved in the Jane Doe 3 incident.
In arguing that the trial court did not abuse its discretion in admitting Jane Doe 3’s testimony, the Attorney General misinterprets the standard. He argues, “Although appellant did not touch Jane Doe 1 or 2 in the laundry room, he followed them to a semi-secluded stairwell of the apartment complex. There, he talked with the girls and then rubbed their stomachs and bottoms. That was not materially different from, or more inflammatory than, his kissing and chest-rubbing of Jane Doe 3.” (Italics added.) The possibility of prejudice arises, however, not if the charged offenses are more inflammatory than the uncharged misconduct, but if the reverse is true, as it was here.
This is well illustrated by the facts in Mullens. In that case the defendant was tried for allegedly molesting his stepdaughter, SS, and two of her friends, VA and TW. In the first trial, the jury found the defendant not guilty of the charges involving VA but was unable to reach a verdict on the other charges. At a retrial of the charges not involving VA, the prosecutor introduced VA’s testimony that the defendant had “french kissed” her and the trial court did not allow the defendant to tell the jury that he had been found not guilty of this act by another jury. Although holding that the trial court erred in excluding evidence of the prior acquittal (Mullens, supra, 119 Cal.App.4th at pp. 662-669), the court held that VA’s testimony was admissible under section 1108. (Mullens, at pp. 659-660.) As to the argument that VA’s testimony should have been excluded under section 352, the court held, “the jury heard evidence that Mullens engaged in multiple sex acts with SS in which he fondled her breasts and vaginal area, kissed her breast, and made her masturbate him. VA’s testimony about the kiss thus cannot be viewed as unduly inflammatory in light of the other evidence of lewd behavior.” (Mullens, at p. 660.)
Defendant urges comparison with People v. Harris (1998) 60 Cal.App.4th 727, in which evidence of a prior sexual assault was held to be unduly prejudicial under section 352 in a trial on charges that a mental health nurse had committed sex offenses against two of his patients. The defendant was accused of fondling the breasts and genitals of two female patients. The prior incident had occurred 23 years earlier and involved a brutally violent attack on a woman in which defendant entered the apartment of the victim “at night while she was sleeping, beat her unconscious and used a sharp instrument to rip through the muscles from her vagina to her rectum, then stabbed her in the chest with an ice pick, leaving a portion of the pick inside her. Police found her beaten unconscious on the floor, bleeding heavily from the vaginal area and bleeding from the mouth and nose. Defendant was found hiding nearby with ‘blood on his hands, blood on his clothes, blood on his thighs, blood on his penis.’ ” (Id. at p. 733.)
The situation in Harris unquestionably differed in degree from the two incidents involved in this case. In Harris, the charged incidents involved offensive but non-violent sexual contact and the uncharged incident was not only remote in time but of an entirely distinct intensity and nature. The evidence was deemed by the appellate court to be not only inflammatory, but “inflammatory in the extreme.” (Harris, supra, 60 Cal.App.4th at p. 738.) Here, the prior incident was more similar to the conduct for which defendant was being tried, but the danger of undue prejudice that the Harris court relied on in reversing the conviction nonetheless was still present. Defendant did nothing in connection with the charged crimes as offensive as performing or suggesting masturbation in the presence of the two minors. The Harris court noted that its “conclusion in Fitch was based on the assumption that section 352 provided a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.” (Harris, supra, at p. 730.)
Because defendant was acquitted of the charge of molesting Jane Doe 3, as the jury was told, there was also a danger, as in Harris, that the jury would “conclude defendant had not been punished for his [prior] actions and would want to ‘punish’ the defendant now.” (Harris, supra, 60 Cal.App.4th at p. 738.) The Falsetta court observed “that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses.” (Falsetta, supra, 21 Cal.4th at p. 917.) Similarly, here the danger also existed that the jury would seek to punish defendant for a crime that the first jury was not convinced beyond a reasonable doubt he had committed.
Despite the deference to which the trial court’s evaluation is entitled, we are convinced that the admission of the testimony concerning Jane Doe 3 in this case was an abuse of discretion. The testimony concerning the prior incident was of limited probative value because unsupported by independent evidence of other instances of similar misconduct. Yet this evidence was highly prejudicial, both because it was more inflammatory than the charged offenses and because of the possibility that the jury would seek to punish defendant for conduct for which he had not previously been punished. Given the crucial role the evaluation under section 352 plays in preserving the constitutionality of section 1108 and in assuring the fairness of the criminal proceedings, we are constrained to hold that the prior conduct evidence in this case should have been excluded under section 352.
Prejudice
Having concluded that the testimony of Jane Doe 3 should not have been admitted, we evaluate the prejudice to defendant under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. This court, “ ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Ibid.)
“Violation of section [Penal Code] 288, subdivision (a) requires the specific intent of arousing the sexual desires of either the perpetrator or the victim. [Citation.] Because the requisite specific intent is an element of the crime it must be proved beyond a reasonable doubt.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) “Because intent can seldom be proved by direct evidence, it may be inferred from the circumstances. [Citations.] Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim’s cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings.” (Ibid.)
In this case, virtually the only evidence that defendant had a lewd intent when he touched Jane Doe 1 and Jane Doe 2 came from the testimony concerning Jane Doe 3. In his argument to the jury, the prosecutor argued: “Defendant’s prior sexual offense involving Jane Doe number 3 proves lewd intent. . . . [B]asically you can consider that earlier offense to decide if in this case was there an innocent explanation for what he was doing or did the defendant have this lewd intent. And that’s why you were able to hear this other evidence to decide does this other evidence help me, assist. Do I believe that based upon an earlier crime or earlier offense, yeah, in this case, you know what, yeah, he had an intent with the girls to kind of arouse himself or satisfy himself. [L]ooking at all the totality of the circumstances here, if you look at everything and not just something in isolation, but if you look at the entire puzzle, people have proven beyond a reasonable doubt the defendant had this intent, this sexual intent, this unhealthy interest in children in touching the children as described by the instructions.”
The prosecutor argued in closing that there was other evidence of lewd intent but referred to little more than his characterization of the facts of the case. The prosecutor first emphasized that defendant “grabbed their butt[s],” which he described as “an intimate touching.” He pointed out that the incident occurred in “an area that’s actually inside, indoors, away from any eyes from the outside.” (The record seems to indicate that the incident occurred in a stairwell and was visible to the sister of Jane Doe 1.) He stated that defendant was a “31-, 32-year-old man approach[ing] a nine and eight-year-old girl” and he pointed to inconsistencies in the statement defendant had given police, describing it as “a series of denials, half truths, concessions, and admissions.”
Defendant relies on People v. Mansell (1964) 227 Cal.App.2d 842, which provides a compelling indication that there was insufficient evidence to support his conviction without the testimony of Jane Doe 3. In Mansell the defendant was charged with two counts of touching minors with lewd intent. The court found that there was insufficient evidence to support the charges and in many ways the evidence was similar to the evidence here: there were inconsistencies in the statements of the victims regarding the manner in which they were touched by the defendant, and the touching, even viewed in the light most favorable to the prosecution, was inappropriate but far from egregious. The Mansell court rejected the prosecution’s theory “that defendant was fondling the private parts, or something close to that area of the body, and that a lewd intent may be inferred from what he did,” because “[t]he confused, contradictory and fragmentary descriptions given by the children indicate at most that on two occasions, in public view, defendant held the girls on his knee and in the course of this he put his hand at or near the area of suspicion.” (Id. at p. 847.) In refusing to permit that matter to proceed to trial, the court placed great reliance on the inconsistencies in the victims’ testimony, and the fact that there was no independent evidence of the defendant’s lewd intent.
In part, the testimony in Mansell was: “Debbie testified that she knew defendant as ‘Charley,’ . . . . She had two sisters, Katie and Robbin. Debbie and Katie played with Charley ‘in the sand’ ‘under the porch.’ What was meant by ‘under the porch’ is not clearly established, but from other testimony it would appear that the porch referred to was the second story porch, reached by an outside stairway. Further testimony by Debbie on direct examination: ‘Q. Did you and Katie ever sit on Charley’s lap? A. Yes. Q. How would both of you sit on his lap? A. Straddled. Q. Both his legs or one leg; how did you sit? A. One. Q. Each one of you on one leg? A. Yes. Q. And did Charley ever touch you while you were straddled his legs? A. Yes. Q. Where did he touch you? A. He put his hand under my shorts and in between my legs when I was in the cabin, and the other one was when I was under the porch. . . . Q. When Charley put his hand under your shorts, did he touch you? A. Yes. Q. And where did he touch you? A. I don’t know. Q. Did he touch your legs? A. Yes. Q. Did he touch any other part of you? A. No. Q. What part of your legs did he touch? A. Under my shorts. Q. Was that close to your body? A. No. Q. Where abouts was it did he touch you? A. Right at the end. Q. At the end of your leg? A. (Witness nods head affirmatively.) Q. Is that where your foot is? A. No. Q. It is the other end of your leg; is that right? A. Yes. Q. Now, this time that you were under the porch with your sister sitting on Charley’s, straddled Charley’s legs, how long did he touch you under your shorts? A. Right at the end of them. Q. Well, how long, Debbie? A. I don’t know. Q. Were his fingers still when he put his hand under there or did they move? A. He moved his fingers. Q. Were his fingers touching you when he moved them? A. Yes. Q. This happened at any other time than besides when you were under the porch? A. No. . . . The Court: And you say he touched your body, some part of your body? The Witness: Right at the end of my shorts. The Court: Right at the end of your shorts. Do you know what part of your body you use when you go to the bathroom to make water; was that the part of the body that he touched? A. (Witness shakes head negatively.) The Court: He didn’t touch that. Well, you said something about he touched you between the legs; what did you mean by that? The Witness: Right in between them. The Court: Right where the two legs come together; is that what you mean? The Witness: Yes.’ [¶] On cross-examination Debbie said that by ‘shorts’ she meant outside pants or shorts, not underpanties.” The second victim’s testimony was similarly muddled. (People v. Mansell, supra, 227 Cal.App.2d at pp. 843-844.)
Because the principal, if not the only, evidence of defendant’s lewd intent in this case was the testimony concerning Jane Doe 3, it is reasonably probable that the jury would not have found defendant guilty in the absence of this testimony. Since the conviction must be reversed, we need not reach defendant’s remaining contentions concerning jury instructions and sentencing.
Disposition
The judgment is reversed.
We concur: Siggins, J., Jenkins, J.