Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF297711)
APPEAL from a judgment of the Superior Court of Tulare County. H. N. Papadakis, Judge. Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On September 4, 2015, defendant Daniel Vergara Camacho was convicted of six counts of committing lewd and lascivious acts upon a child under the age of 14 years in violation of Penal Code section 288, subdivision (a). On September 8, 2015, the court found the allegations of substantial sexual contact true as to counts 1 and 2.
On October 13, 2015, defendant was sentenced to a total of 10 years in state prison. The court imposed the middle term of six years on count 1 and the following consecutive terms: one-third the middle term of two years for count 3, to run consecutively to count 1, and one-third the middle term of two years for count 5, to run consecutively to count 3. Defendant's sentences on the remaining counts were ordered to be served concurrently. He received a total of 642 custody credit days for counts 1, 2, 4, and 6.
On appeal, defendant contends the trial court erroneously admitted evidence of uncharged sexual offenses under Evidence Code sections 1101, 1108, and 352. Further, he argues that admission of the evidence under section 1108 violated his right to due process and a fair trial in violation of the Fourteenth Amendment. We affirm the judgment of the trial court.
Undesignated statutory references are to the Evidence Code unless otherwise indicated.
Y.B. was 12 years old at the time of trial and lived in with her mother, Juana. Y.B.'s maternal grandmother, Leticia, lived nearby with her two daughters, Jaylyn and L.V., and her son, D.V.
Defendant is Y.B.'s maternal grandfather. Leticia was not married to defendant, but considered him to be her husband; they lived together in Tulare County for more than 12 years.
At trial, Y.B. testified defendant touched her when she slept at her grandmother's house. She discussed incidents where defendant touched her "bottom," "middle part," and "boobs." She was 10 or 11 years old when defendant touched her vagina for the first time.
Y.B. explained defendant touched her bottom when she would pass by, but never in any other way. She could not remember whether she had told a detective that defendant touched her bottom while she was asleep. He also touched her middle part—her vagina—with his hands. Initially, she stated he touched her vagina under her pants, but then she said he touched her over her pants. She said defendant touched her vagina two times, but then said she did not know how many times because she could not remember. Y.B. further stated defendant touched her boobs once on top of her shirt with his hand while she was asleep on the floor.
On cross-examination, Y.B. stated defendant only touched her vagina one time at her grandmother's house. She explained the touching occurred while she was sleeping on the floor of L.V.'s room. L.V. and Leticia were sleeping on the bed. Y.B. heard someone come into the room because she heard the floor creak, but she did not open her eyes. She woke up when defendant began touching her. She knew it was defendant because she saw him. There were no lights on inside, but lights from passing cars allowed her to see that it was defendant. Leticia then woke up and asked who was in the room and defendant left without saying anything. Y.B. went back to sleep afterwards.
Leticia testified that when she woke up, she asked who was in the room and saw defendant standing at the door. She stated defendant did not enter the room. Instead, he went into Jaylyn's room, which was nearby. The prosecution played a recording in which Leticia previously described the same incident to a detective. The recording revealed a different account of events where Leticia stated she saw defendant crawling on the floor, not standing by the door. In response to the recording, Leticia explained that when she saw him crouched over, he was not in the room, but was going into Jaylyn's room. After he came out of Jaylyn's room, he went to the bathroom. Leticia explained defendant would customarily check on the children while they were sleeping, but Jaylyn was not home on that particular night. Leticia did not know if defendant was aware that Jaylyn was not there.
Jaylyn testified Y.B. confided in her with "girl problems." Jaylyn stated she was not home when the subject incident occurred. The following morning Y.B. asked Jaylyn why she had not been home, and related she had had a nightmare. Y.B. told Jaylyn "something" touched her, but she did not know what it was. Y.B. said she had seen defendant by the restroom door. Jaylyn was shocked and went straight to Leticia. Leticia was shocked and surprised, but told Jaylyn she was unsure whether she should believe Y.B. because it may have been a dream. Leticia told Jaylyn she had seen defendant the night before. Jaylyn testified she loves her father, but stated, "If he did something wrong I think he should pay [for] what he did."
The day after the incident, Leticia asked Y.B. if someone had touched her. Y.B. responded "yes," and laughed. Leticia stated, "Well she is just like that. She, you know, she says things and she laughs."
Y.B. also told Juana that defendant had touched her vagina. Juana confronted defendant and told him that if he had touched Y.B., she was going to go to the police. Juana explained she allowed Y.B. to continue going to defendant's residence after she found out defendant had been touching her because she was using drugs and could not take care of Y.B. Juana believed Y.B. when she told her defendant was touching her.
Law Enforcement Investigation
On October 22, 2013, Deputy Sheriff Nathan Cruz with the Tulare County Sheriff's Department responded to Y.B.'s school to a possible child molest call. Y.B. reported defendant had touched her on four different occasions. The most recent incident had occurred two Saturdays before the report was made. Y.B. explained she was asleep at her grandmother's house and the bedroom door was open when defendant crawled inside and laid next to her. Defendant reached inside of her pants, through the front button. She felt his bare hand on her vaginal area. Y.B. reported defendant offered her $10 on one occasion to let him touch her between the legs.
During Y.B.'s child abuse response team (CART) interview, Y.B. explained defendant touched her vagina seven or eight times. He touched her breasts three times. She stated the first time he touched her, she was sleeping on the couch and he touched her middle part with his fingers, underneath her clothes. Her grandmother was in the same room. He also touched her under her clothes on her buttocks on that same occasion. She told her grandmother when the first touching occurred and her grandmother told her "she was trying to figure it out." Y.B. explained defendant would touch her when he thought she was asleep. Her grandmother only caught him one time. Y.B. stated she felt scared when defendant would touch her and did not have positive feelings towards him. She said her grandmother eventually reported the touching to someone at her school.
During the CART interview, Y.B. also revealed defendant offered her $10 to let him put his "middle part" inside of her. She told defendant she did not want to. He offered her $10 to touch her vagina on two occasions.
Prior Uncharged Sexual Misconduct
Juana testified defendant is her mother's significant other. She has known him for at least 18 years. She had previously lived with defendant. She explained he touched her when she was 17 years old and while she was sleeping on defendant's couch. However, she immediately clarified, stating, "Well he didn't touch me, he just touched my shoulder in order to wake me up."
Detective Katherine Garcia testified she interviewed Juana in 2013. Juana told Garcia she had been staying at her mother's house after having a baby when she was 17 years old. She said defendant would fondle her breasts and touch her legs while she was asleep on the couch. It happened five or six times. Juana told her mother about defendant touching her.
Juana admitted she told Detective Garcia defendant touched her breasts and legs on five to six occasions while she was sleeping on the couch. However, she explained her mother told her to say those things. She reiterated defendant only touched her to wake her up, and she warned him she was going to tell her mother. Leticia did not believe Juana when she told her defendant had been touching her.
Leticia testified Y.B. had previously lied about incidents. Y.B. lied about Jaylyn and D.V. having sex when they were young. She said law enforcement investigated the incident.
D.V. testified Y.B. is his niece and he resided in defendant's home when the subject incident occurred. He said Y.B. had made a false allegation a few years earlier when Y.B. claimed he had been touching his sister. Law enforcement investigated the claim. D.V. stated Y.B. is a liar and has lied about other things. On cross-examination, D.V. admitted he did not hear Y.B. make the accusation and did not have knowledge it came from her, but explained the accusation could not have come from anyone else.
L.V. testified she also lived in the home along with defendant when the incident occurred. She stated she was sleeping in the same room as Y.B., but did not see anything happen between defendant and Y.B. L.V. heard noises on the floor, but did not look over because she was half asleep.
L.V. also described the allegation made about D.V. and Jaylyn inappropriately touching each other. She stated she did not have personal knowledge as to what Y.B. said. She said the allegation regarding D.V. and Jaylyn was the "biggest lie [Y.B.] has done."
Detective Garcia testified she spoke to L.V. about the subject incident. L.V. told Garcia she was asleep next to her mother, and Y.B. was sleeping on the floor, when she heard noises on the floor. The noises woke her up, but she did not lift her head. She then heard her mother call out and ask who was in the room. L.V. also described the prior false allegations.
Admission of Evidence of Prior Sexual Offenses
On appeal defendant contends (1) the trial court erred in admitting evidence of the prior uncharged conduct with Juana under section 1108, (2) the trial court erred in admitting evidence of the uncharged conduct with Juana under section 1101, (3) the prior uncharged conduct should have been excluded under section 352, and (4) admitting the evidence under section 1108 violated his right to due process and a fair trial under the Fourteenth Amendment.
Defendant withdrew the argument that the prior uncharged crime against Juana, characterized as a misdemeanor sexual battery under Penal Code section 243.4, subdivision (e)(1), is an unlisted crime under Evidence Code section 1108. Defendant erroneously cited to "section 234, subdivision (e)(1)" in the discussion of the opening brief due to a transcription error on behalf of defense counsel while taking notes. Defendant acknowledges Penal Code section 243.4, subdivision (e)(1) is a listed sexual offense under Evidence Code section 1108. --------
During in limine motions, the People moved to have evidence of defendant's prior sexual offenses against Juana admitted under section 1108.
The court held a section 402 hearing regarding the evidence. Juana testified defendant is her stepfather. She said defendant "probably" touched her in passing when she was 17 years old while they were trying to get through a door. She recalled telling a detective that when she lived with defendant, he would touch her breasts when she would sleep on the couch. However, she stated that "it wasn't like that" and "maybe [she] was dreaming or something like that." She explained that although she remembered telling the detective that defendant would touch her breasts and legs when she would sleep on the couch, she did not want to accuse him. She denied telling defendant she was going to yell for her mother to get him to stop and stated she only told him not to touch her.
Detective Garcia testified Juana told her that when she was 17 years old, she was staying at her mother's house after she had a baby and defendant would fondle her breasts and touch her legs when she would sleep on the couch. Juana told her it happened five or six times and that she had told her mother about defendant touching her.
Defense counsel objected to the admission of the evidence on three grounds. First, the defense argued Juana seemed to be recanting and the accusation was unreliable. Second, the defense argued the allegations had gone unreported for over 10 years. Third, the defense objected on the basis the evidence was prejudicial and was likely to confuse the jury. The defense further pointed out the evidence was not relevant because Y.B. was a prepubescent girl and Juana had been a postpubescent girl at the time the touchings occurred, and the evidence pertaining to Juana would not appropriately apply as propensity evidence of molesting a prepubescent girl.
The People argued Juana only partially denied the accusations and had stated she did not want to accuse defendant "now." They argued the evidence was similar because Juana was a minor sleeping on the couch and defendant touched her genital and breast areas. The People maintained the evidence went to intent and common scheme, and it was within the scope of section 1108.
At the conclusion of the section 402 hearing, the court determined the evidence was admissible under section 1108. The court found both incidents had significant similarities because both victims were minor females, both had been sleeping when the acts were committed against them, both had a family relation with defendant, and the sexual offenses were similar. The court also found remoteness of time was not an issue, and the probative value of the evidence outweighed its potential prejudice.
Defense counsel subsequently noted the evidence should be excluded because it was remote in time. The trial court responded, "That was the one consideration the Court had is the length of time and under 1101 it would be much more effective than 1108, it is not so much assuming you consider all the similarities."
At trial, the court addressed the section 1108 evidence a second time, stating, "In simple terms the Court finds that the probative value outweighs the prejudicial effect which obviously there is such in this evidence." As to remoteness in time, the court reasoned that the presumption of 10 years set forth in section 1109 was not applicable to section 1108.
The jury was instructed with CALCRIM Nos. 938, 375, and 1191. The court characterized the uncharged sexual offenses against Juana as a misdemeanor sexual battery under Penal Code section 243.4, subdivision (e)(1). CALCRIM No. 938 instructed the jury that to prove defendant was guilty of the sexual battery against Juana, the People were required to prove (1) defendant touched an intimate part, (2) against her will, and (3) for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.
CALCRIM No. 375 instructed the jury in pertinent part that if it found defendant committed the uncharged offense against Juana, it could consider the evidence for the limited purpose of deciding whether defendant acted with the intent to commit a lewd or lascivious act on Y.B., or if he acted with a plan or scheme to commit the offense against Y.B.
CALCRIM No. 1191 instructed the jury if it found defendant committed the uncharged offense against Juana, it could also conclude from that evidence that he was disposed or inclined to commit and did commit lewd or lascivious acts on Y.B. in counts 1 through 6.
A. Admission of the Evidence Pursuant to Section 1101
Evidence of uncharged acts is generally inadmissible to prove a defendant's disposition to commit the charged crime. (§ 1101, subd. (a).) Section 1101, subdivision (a) provides in pertinent part that "[e]xcept as provided 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." However, evidence an individual committed a crime or other act is not prohibited when relevant to establish a fact other than the individual's disposition to commit such an act. (§ 1101, subd. (b).) Such evidence may be used to establish motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether an individual in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe the victim consented. (Ibid.)
"Evidence of an uncharged offense is usually sought to be admitted as 'evidence that, if found to be true, proves a fact from which an inference of another fact may be drawn.' [Citation.]." (People v. Thompson (1980) 27 Cal.3d 303, 315, fn. omitted, disapproved on other grounds in People v. Scott (2011) 52 Cal.4th 452, 470-471, and People v. Rowland (1992) 4 Cal.4th 238, 260.) The admissibility of an uncharged offense hinges on three factors: (1) the materiality of the fact to be proved, (2) the tendency of the uncharged offense to prove or disprove the material fact, and (3) the existence of a rule requiring exclusion of the relevant evidence, such as section 352, which requires exclusion if the prejudicial effect of the evidence outweighs its probative value. (People v. Hendrix (2013) 214 Cal.App.4th 216, 238.) On appeal, the court reviews this issue for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
Defendant argues "the degree of similarity is insufficient to suggest the lewd and lascivious intent that is necessary to prove a felony [Penal Code] section 288, subdivision (a) crime." Defendant recognizes a sexual battery under Penal Code section 243.4, subdivision (e)(1) contains some elements of purpose of sexual arousal, gratification, or abuse. However, he posits the uncharged sexual battery was pled as a misdemeanor because of the age of the victim and the touching involved was less severe. Thus, he concludes "the variance in the victim's age suggests that there is indeed a lack of similarity between the two crimes, as recognized by the Legislature's treatment of the two types of conduct."
Evidence of an uncharged offense is admissible to prove identity, common plan, or intent only if it is sufficiently similar to the charged offense to support the inference that the defendant harbored the same intent in each instance. (People v. Carter, supra, 36 Cal.4th at p. 1147.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
"'[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 ....' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]'" (Ibid.)"'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citation.]" (People v. Ewoldt, supra, at p. 394, fn. 2.) Accordingly, it is the similarity between the uncharged conduct and the charged offense that determines whether evidence should be admissible under section 1101, subdivision (b).
In the instant case, there were significant similarities between the uncharged and the charged offenses. Both victims were minor females with a family relation to defendant when the incidents occurred. The incidents occurred while they were sleeping in defendant's home. Further, the acts committed against Y.B. and Juana were similar to one another. Defendant touched both victims on the breasts, amongst other private body parts. Defendant committed sexual offenses against both victims on multiple occasions. Thus, the similarities between the uncharged misconduct and the charged offenses support the inference defendant likely harbored the same intent.
Defendant suggests the age difference between Y.B. and Juana at the time the offenses were committed supports an inference the offenses are not similar. Y.B. was between 10 and 11 years old, and Juana was 17 years old. As such, defendant argued the evidence could not appropriately apply as propensity evidence of molesting a prepubescent girl. We find defendant's argument unpersuasive.
In People v. Escudero (2010) 183 Cal.App.4th 302, the defendant was accused of molesting the seven-year-old daughter of his girlfriend. (Id. at p. 305.) At trial, evidence of uncharged sexual misconduct against three teenage girls and two adult women was admitted pursuant to sections 1101 and 1108. (Escudero, at p. 309.)
The defendant argued there was a significant age difference between the seven-year-old victim of the charged offense and the two adult victims of the uncharged offenses. (People v. Escudero, supra, 183 Cal.App.4th at p. 311.) Defense counsel stated, "'Other than sheer speculation, the record is devoid of evidence showing that a man who allegedly forcibly and sexually assaults adult women also would be inclined to sexually molest a young child.'" (Ibid.) The court disagreed. "[P]ersons with deviant sexual urges do not always limit their sex crimes to victims of the same age group." (Id. at p. 306.) While the court reasoned the evidence of the adult women was admissible pursuant to section 1108, the court highlighted that the offenses shared significant similarities. The degree of similarity is particularly relevant to a section 1101 analysis.
Further, the Escudero court found the sexual misconduct against the teenagers was admissible pursuant to section 1101 to prove intent because it was sufficiently similar to the charged conduct. (People v. Escudero, supra, 183 Cal.App.4th at p. 309.) The court reasoned the evidence was relevant to show the defendant's intent to touch the seven-year-old girl in sexual manner. (Id. at p. 314.)
In light of the similarities between the instant charge and the uncharged offenses, we find the trial court correctly admitted evidence of defendant's sexual misconduct against Juana under section 1101.
B. Admission of the Evidence Pursuant to Section 1108
Section 1108, subdivision (a) provides that "[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." Section 1108 allows the trier of fact to consider a defendant's other sex offenses when evaluating the victim's and defendant's credibility. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
The Legislature has found people who commit sexual offenses have a propensity to commit sex crimes against multiple victims. (People v. Escudero, supra, 183 Cal.App.4th at pp. 305-306.) The Legislature enacted section 1108, subdivision (a) to allow evidence of other sexual crimes committed by a defendant, unless the evidence is subject to exclusion under section 352. (Escudero, at p. 306.)
The trial court expressly found the evidence of defendant's uncharged sexual misconduct against Juana was admissible under section 1108. The court reasoned there were significant similarities between the uncharged conduct and the charged offense, remoteness of time was not an issue, and the probative value of the evidence outweighed the prejudicial effect. Defendant does not argue the evidence should have been excluded as inadmissible under section 1108. Rather, defendant argues the admission of the evidence was an abuse of the trial court's discretion under section 352.
C. Section 352 Did Not Warrant Exclusion of the Evidence
The admissibility of uncharged sexual offenses must be weighed against section 352. Pursuant to section 352, a court has the discretion to exclude relevant evidence if its admission would necessitate an undue consumption of time or create substantial danger of undue prejudice, confuse the issues, or mislead the jury. Evidence is unduly prejudicial if it "'"'uniquely tends to evoke an emotional bias against the defendant as an individual and ... has very little effect on the issues'"' [citation], or if it invites the jury to prejudge '"'a person or cause on the basis of extraneous factors.'"' [citation]. 'Painting a person faithfully is not, of itself, unfair.' [Citation.]" (People v. Johnson (2010) 185 Cal.App.4th 520, 534.)
The factors that determine whether the evidence is prejudicial are: (1) whether the prior offenses were more inflammatory than the charged conduct, (2) the possibility of the jury confusing the issues, (3) the remoteness of time, and (4) whether the defendant had been convicted and punished for the prior offenses. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
"It is well recognized that there must be a clear abuse of discretion before an appellate court will disturb a trial court's ruling based on ... section 352." (People v. Demery (1980) 104 Cal.App.3d 548, 558.) The appellate court "will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious, and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) "The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (Ibid.) "'"[T]he record must affirmatively show that the trial judge did in fact weigh prejudice against probative value ...."' [Citations.] ... '[N]o more is required. Certainly, the trial judge need not expressly weigh prejudice against probative value—or even expressly state that he has done so.'" (People v. Clair (1992) 2 Cal.4th 629, 660.) There need only be an adequate record for meaningful appellate review. (Id. at p. 661.)
As noted earlier, the trial court expressly stated the probative value of the evidence outweighed its potential prejudice. The court reasoned, "In simple terms the Court finds that the probative value outweighs the prejudicial effect which obviously there is such in this evidence."
Defendant posits the evidence should have been excluded because the offenses were remote in time, occurring approximately 17 years prior to the instant crime. There are no established time limits rendering uncharged sexual offenses inadmissible because they are too remote in time. (People v. Pierce (2002) 104 Cal.App.4th 893, 900.) "[T]he passage of a substantial length of time does not automatically render the prior incidents prejudicial." (People v. Soto (1998) 64 Cal.App.4th 966, 991.)
In People v. Branch (2001) 91 Cal.App.4th 274, 284, the court allowed evidence of a sexual offense committed 30 years prior to the charged crime. "'[S]ignificant similarities between the prior and the charged offenses may 'balance out the remoteness.' [Citation.]" (Id. at p. 285.) "[I]f the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses." (Ibid.) Here, the uncharged sexual misconduct is similar to the instant charge for various reasons; thus, we reject defendant's contention the evidence should have been excluded because it was too remote in time.
Defendant relies on People v. Harris (1998) 60 Cal.App.4th 727 in support of his contention the evidence was too remote in time. In Harris, the trial court erroneously admitted redacted evidence of a violent sexual assault the defendant had committed 23 years prior to the charged offense. Accordingly, the appellate court reversed the defendant's conviction. (Id. at pp. 738-742.) However, Harris is factually distinguishable from the present case.
In the 23-year-old incident, Harris burglarized the victim's home at night while she was sleeping, beat her unconscious, sexually mutilated her, and stabbed her in the chest with an ice pick. (People v. Harris, supra, 60 Cal.App.4th at p. 733.) The redacted evidence did not account for all of the vicious details but revealed the victim had been found unconscious or semiconscious with severe swelling around her face and head, naked from the chest down and her legs spread apart, and with blood on her mouth and vagina. (Id. at p. 734.) In the charge at issue, Harris had licked and fondled an incapacitated woman and a former sexual partner (id. at p. 738), both of whom he had served as a caregiver for at a mental health hospital. (Id. at p. 730.)
In Harris, the appellate court found the evidence should not have been admitted because multiple factors weighed heavily against its admission. The only factor slightly favoring admission was the consumption of time. (People v. Harris, supra, 60 Cal.App.4th at p. 741.) However, even on the consumption of time, the court found the factor did not weigh strongly in favor of admission. (Id. at p. 739.) The Harris court found the evidence was "inflammatory in the extreme," would confuse the jury, and was "totally dissimilar" to the charged offense. (Id. at pp. 738-741.)
Harris is not like the present case because there, the prior sexual crime was not similar to the crime at issue. The latter crime was extremely violent, even in its redacted form. The former offenses were nonviolent crimes where "at worst defendant licked and fondled" the victims. (People v. Harris, supra, 60 Cal.App.4th at p. 738.) Here, both crimes were much more similar to one another, where defendant fondled Juana and Y.B., two female minors, in a similar manner while they slept.
Defendant also contends the evidence is made less probative because it came from a nonindependent source, Y.B.'s mother. "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.) In the instant case, the probative value is not increased by this factor because the evidence came from Y.B.'s mother, Juana. However, it is unlikely Juana fabricated her testimony since she repeatedly stated she did not want to accuse defendant.
Defendant argues the evidence was prejudicial because he was not convicted for the prior sexual offenses against Juana. "[T]he prejudicial effect of this evidence is heightened by the circumstance that defendant's uncharged acts did not result in criminal convictions." (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) When an act does not result in a conviction, the jury might be inclined to punish the defendant for the uncharged offense by finding him or her guilty of the charged offense, even if it might not believe the defendant is actually guilty. (Ibid.) On the other hand, evidence of an uncharged offense that is no stronger or no more inflammatory than the charged offense decreases the possibility of prejudice. (Ibid.)
Ultimately, the principal factor affecting the probative value of evidence of an uncharged act is its similarity to the charged offense. (People v. Johnson, supra, 185 Cal.App.4th at p. 531.) The similarity of defendant's uncharged offense to that of the charged offense is great. Thus, the trial court did not abuse its discretion by not excluding the evidence pursuant to section 352.
D. Admission Under Section 1108 Does Not Violate the Fourteenth Amendment
The court in People v. Falsetta rejected a facial due process challenge to section 1108.
"To prevail on such a constitutional claim, defendant must carry a heavy burden. The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. [Citations.] In the due process context, defendant must show that section 1108 offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. [Citations.] The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair. [Citations.] Estelle [v. McGuire (1991) 502 U.S. 62] expressly left open the question whether a state law permitting admission of propensity evidence would violate due process principles. [Citations.]" (People v. Falsetta, supra, 21 Cal.4th at pp. 912-913.)
Defendant acknowledges Falsetta rejected a facial due process challenge against section 1108 and recognizes this court must follow Falsetta. The holdings of the California Supreme Court are binding on all state courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant merely raises the issue to preserve it for federal review. Accordingly, we reject defendant's contention under Falsetta.
The judgment of the trial court is affirmed.
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________