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People v. Lewis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 30, 2018
F072763 (Cal. Ct. App. Aug. 30, 2018)

Opinion

F072763

08-30-2018

THE PEOPLE, Plaintiff and Respondent, v. TONY LEWIS, Defendant and Appellant.

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Sarah J. Jacobs, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF011722A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Tony Lewis, a state prison inmate, was charged with indecent exposure in connection with an incident in which he masturbated in front of a female correctional officer. Following a trial by jury, defendant was convicted of one count of indecent exposure, in violation of Penal Code section 314, subdivision 1. In the same proceeding, the jury found true that defendant had a prior conviction for violating Penal Code section 314, which elevated the charged offense from a misdemeanor to a felony, and found true that defendant had a prior felony conviction within the meaning of the Three Strikes law. (Pen. Code, § 667, subd. (e).) The trial court sentenced defendant to the upper term of three years in state prison, doubled based on his prior strike conviction for a total determinate term of six years.

During trial, the prosecutor introduced evidence of six uncharged sexual offenses committed by defendant. On appeal, defendant argues the admission of that evidence under Evidence Code sections 1108 and 1101 violated his federal constitutional right to due process. He also argues the trial court erred in failing to exclude the evidence both under section 352 and as a sanction based on the prosecutor's asserted failure to comply with the 30-day notice requirement. (§ 1108, subd. (b); Pen. Code, § 1054.7.) Finally, defendant argues the trial court erred in excluding evidence of the dispositions of two of the uncharged offenses, erred in its instruction to the jury on CALCRIM No. 1191, and erred in failing to exclude one witness's testimony under the psychotherapist-patient privilege.

Although not relevant to the issues raised on appeal, effective January 1, 2018, Evidence Code section 1108 was amended to include specified human trafficking offenses within the statutory definition of "'sexual offense.'" (Sen. Bill No. 230, approved by Governor, Oct. 14, 2017 (2017-2018 Reg. Sess.) ch. 805, § 1.)

All further statutory references are to the Evidence Code unless otherwise noted.

The People contend defendant forfeited his due process claim and claim of instructional error by failing to object at trial. They otherwise dispute defendant's entitlement to any relief on the merits of his claims.

We reject defendant's due process claim and we conclude the trial court did not abuse its discretion in admitting the uncharged sexual offense evidence under section 1108. We also conclude the trial court did not abuse its discretion in failing to exclude the section 1108 evidence as a discovery sanction, in excluding evidence of the disposition of two uncharged offenses, or in failing to exclude certain testimony under psychotherapist-patient privilege. With respect to defendant's challenge to the court's instruction on CALCRIM No. 1191, to the extent the trial court committed technical error, the error was harmless beyond a reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819, 831.) Accordingly, we affirm the judgment.

FACTUAL SUMMARY

I. Prosecution Case

A. Charged Offense

On December 3, 2014, Nicole V., a female correctional officer, was working the first watch from 10:00 p.m. to 6:00 a.m. at California Correctional Institution (CCI), a men's prison. Every 30 minutes, she conducted a security check of each cell, which entailed tapping on each door with an electronic "pipe" and verifying each inmate was "alive and breathing." Because the cells were dark at that time, she used her flashlight to look through the nine-inch window in each cell door.

At approximately 11:30 p.m., Nicole arrived at defendant's cell to conduct the third check of her shift. When she shined her flashlight in his cell, she saw him lying on his back with his feet pointed toward the cell door. Despite the cool building temperature, defendant was completely naked and was not covered by his sheet or blanket. His legs were spread apart and bent slightly, and he was using both hands to masturbate his erect penis. Nicole testified defendant was looking directly at her and he did not respond to or comply with her order to stop masturbating. Instead, he spread his legs further apart and continued masturbating while making eye contact with her. Nicole walked away and notified her supervisor. She testified she felt angry and disrespected.

B. Prior Uncharged Sexual Offenses

The prosecutor introduced evidence of six prior uncharged sexual offenses, all of which were in-prison incidents of masturbation witnessed by female staff members.

1. Adrienne B.

On March 10, 2007, Adrienne B. was working as a correctional officer at Kern Valley State Prison (KVSP). At approximately 12:50 a.m., she approached defendant's cell for her second count of the night. Defendant was lying on his back, completely naked and uncovered. He was looking at Adrienne as he masturbated his erect penis. She banged on his cell window three times and told him to stop, but he kept looking at her and masturbating. After she completed the count, she notified the sergeant and wrote an incident report. She testified she felt offended.

2. Edith H.

On May 30, 2007, at approximately 6:30 a.m., Edith H., a correctional officer at KVSP, was handing sack lunches out to the inmates. As she approached defendant's cell, the door to the food port in his cell door was open and defendant was standing in front of the cell door with his erect penis sticking out of the open food port. Defendant was masturbating his penis with one hand. Edith testified she was offended and she ordered defendant to stop multiple times but he did not comply.

3. Demetria S.

Demetria S., a correctional officer, testified that on July 14, 2008, at approximately 2:45 a.m., she was conducting a count at KVSP. When she looked through the window in the cell door to check on defendant, he was lying on his back on his bunk. He was completely naked and was not covered up by his sheet or blanket. Defendant was masturbating his erect penis with both hands and looking her straight in the eye.

Demetria tapped on the door and ordered defendant to stop and put his clothes on. He did not comply and continued to stare at her as he masturbated. She testified she felt shocked, embarrassed, angry and upset. She also testified that not every incident of in-prison masturbation results in a disciplinary write-up, or rules violation report, because sometimes there is no intent to offend and the men scramble to cover themselves. Defendant, however, made no effort to cover himself.

4. Maria L.

On July 21, 2008, at approximately 3:00 a.m., Maria L., a correctional officer, was conducting a count in the hospital section of KVSP. In that unit, the cell lights are on 24 hours a day and when Maria checked defendant's cell, she saw him lying on his back on his mattress in front of the cell door. Defendant was completely naked and masturbating his erect penis. Maria tapped on the door and told defendant to stop, but he looked directly at her and kept masturbating. She testified she felt violated.

5. Elisa E.

Elisa E., a correctional officer at KVSP, testified that on October 1, 2008, at approximately 8:50 a.m., she escorted defendant to a small holding cell with a metal mesh door so he could work on legal matters. He was wearing a white jumpsuit. After Elisa removed defendant's handcuffs, he requested she make photocopies for him and handed her some paperwork through the port in the cell door. Elisa started walking away with the paperwork but then turned back around to ask defendant how many copies he needed. As she moved closer to the holding cell, Elisa saw defendant was completely naked. His jumpsuit was around his ankles and he was masturbating his erect penis.

Elisa ordered defendant to stop. She testified she did not remember if he stopped, but she walked away and notified the sergeant. She testified she felt shocked, violated and offended.

6. Skye S.

Finally, Skye S., a psychiatric technician at CCI, testified that at approximately 8:55 a.m. on August 8, 2015, she was doing her rounds. When she arrived at defendant's cell, he was lying on his back on his bunk, naked and uncovered. Defendant was masturbating and when Skye ordered him to stop, he ignored her and kept masturbating. She testified she felt awkward and embarrassed.

II. Defense Case

Defendant testified he has prior convictions for attempted murder with a firearm and indecent exposure. Regarding the charged offense, defendant testified he masturbated that night, but it did not have anything to do with Nicole. He testified he did not hear her tell him to stop and he did not know anyone was there until a light shined into his cell. He denied that he masturbated with the intent to be seen, to offend anyone, to arouse anyone or to arouse himself by being seen.

Defendant admitted he was masturbating on March 10, 2007, but testified he did not know Adrienne was there until she tapped on his window. He denied his act of masturbation had anything to do with Adrienne's presence.

Defendant denied sticking his penis through the food port opening in his door and masturbating in front of Edith. He testified that an officer had previously confiscated some purportedly explicit drawings, including one of Edith. Although defendant denied the drawings were explicit, he testified it was a source of conflict with Edith.

During defendant's direct examination on this issue, defense counsel referred to the date of June 25, 2008. It appears this was an error, however, as the incident of masturbation involving Edith occurred in May 2007, and the testimony regarding the explicit drawings was intended to inform the jury of a conflict between defendant and Edith that predated the incident of masturbation.

Defendant admitted the incident of masturbation on July 14, 2008, occurred, but testified the act had nothing to do with Demetria.

Defendant testified he did not remember much about the incident on July 21, 2008, but stated he was wearing a long pullover shirt that could have been partially open. He remembered Maria coming by and stated he could have been masturbating, but the act had nothing to do with Maria.

Defendant testified he remembered Elisa escorting him to the holding cell, but he denied taking his clothes off and he denied masturbating or intending to masturbate. Defendant stated he was expecting to be alone in the holding cell for at least an hour and he was surprised when Elisa turned back around.

Defendant also testified he could have been masturbating on August 8, 2015, but the act did not have anything to do with Skye. He stated he did not know anyone was at his cell until Skye tapped and he heard someone say, "Oh, my God."

Defendant informed the jury of the reasons he prefers to masturbate naked and uncovered, and he denied stating to an officer who asked him why he was disrespecting her, "I know you're doing count." On cross-examination, defendant testified he received disciplinary write-ups for each incident and he was punished. He also received a disciplinary write-up for having explicit drawings of staff.

III. Rebuttal

On rebuttal, Curtis Weatherford, a correctional sergeant, testified that Elisa reported a situation to him on October 1, 2008, after which he observed defendant, nude from the waist down, trying to pull his boxer shorts and jumpsuit up to cover his erect penis.

DISCUSSION

I. Admission of Uncharged Offenses Under Section 1108

A. Background

"The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285 (Cottone); accord, People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) This ensures "'that a defendant is tried upon the crime charged and is not tried upon an antisocial history.'" (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1176.) The Legislature carved out an exception for sex offense cases, however, through its 1995 enactment of section 1108, which provides in relevant part: "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." (§ 1108, subd. (a).)

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."
Section 352, discussed in greater detail post, provides: "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."

Section 1108 reflects the Legislature's recognition that sex offense cases have unique attributes. (Falsetta, supra, 21 Cal.4th at p. 918.) As the California Supreme Court explained, "'Our elected 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.'" (Id. at p. 911.) The Legislature thus determined that evidence of this type is uniquely probative of a defendant's propensity to commit sex offenses and policy considerations outweighed the general prohibition against propensity evidence. (Cottone, supra, 57 Cal.4th at pp. 285-286; Falsetta, supra, at pp. 911-912.)

B. Due Process Violation

1. Background

Almost two decades ago, the California Supreme Court upheld section 1108 against a due process challenge, stating, "To prevail on such a constitutional claim, [the] 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, [the] 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." (Falsetta, supra, 21 Cal.4th at pp. 912-913.) The court concluded that because trial courts have discretion to exclude propensity evidence under section 352, section 1108 does not violate the due process clause. (Falsetta, supra, at pp. 916-917.)

Defendant acknowledges the decision in Falsetta, but claims the admission of the uncharged sex offense evidence under section 1108 violated his federal constitutional right to due process "as applied." He advances two grounds on which the admission of the evidence resulted in a violation of his right to due process: the charged offense in this case did not present the type of problem section 1108 was intended to prevent and the trial court failed to conduct a section 352 analysis.

The People respond that defendant forfeited this claim by failing to object to the admission of the evidence on due process grounds, but, that in any event, the trial court acted well within the bounds of its discretion in determining that the evidence was admissible under sections 1108, 1101 and 352.

Regarding forfeiture, defendant contends the objection he made was sufficient to preserve the issue for appeal. In light of our rejection of defendant's claim on its merits, discussed below, we need not decide whether the forfeiture doctrine should apply here. (People v. Merriman (2014) 60 Cal.4th 1, 49, fn. 8; People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880-881, 887, fn. 7.)

2. Charged Crime Outside Scope of Issues Section 1108 Was Intended to Remedy

Quoting Falsetta, defendant recognizes "section 1108 was enacted because sex crimes are often committed in secret with no corroborating evidence and can produce 'trials that are largely credibility contests.'" (See Falsetta, supra, 21 Cal.4th at p. 918.) He contends, however, that in this case, "because the only real issue was [his] intent, there was no reason to offer propensity evidence as opposed to more traditional crimes evidence." We do not agree.

Section 1108, by its express terms, defines conduct under Penal Code section 314 as a sexual offense to which section 1108 applies. (§ 1108, subd. (d)(1)(A).) Moreover, a conviction for indecent exposure "requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront." (In re Smith (1972) 7 Cal.3d 362, 366, fn. omitted; accord, People v. Archer (2002) 98 Cal.App.4th 402, 404-405.) Thus, the issue of defendant's intent is necessarily intertwined with the issue of witness credibility and defendant's claim that the crime in this case falls outside the scope of those issues section 1108 was intended to ameliorate is meritless. To the contrary, the events underlying the crime in this case are entirely typical of sex crimes in general: there is the victim's version and the defendant's version, and the ensuing credibility contest at trial.

Penal Code section 314 provides: "Every person who willfully and lewdly, either:
"1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or,
"2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.
"Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year.
"Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under [Penal Code] Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison."

In our view, defendant's contention that he was denied a fundamentally fair trial because of the introduction of propensity evidence is a thinly disguised attack on the statute itself. Such an attack is foreclosed by Falsetta, as defendant acknowledges, and his argument advances no grounds that would support revisiting settled precedent. (See Merriman, supra, 60 Cal.4th at p. 46; People v. Loy (2011) 52 Cal.4th 46, 60-61 (Loy).) The California Supreme Court has also recognized that the proper admission of evidence "vitiates [a] defendant's constitutional claim" (People v. Winbush (2017) 2 Cal.5th 402, 458) and, as we discuss next, the trial court did not abuse its discretion under section 352 when it admitted the evidence.

3. No Section 352 Analysis

Evidence admissible under section 1108 is nevertheless subject to exclusion under section 352 if the probative value of the evidence is substantially outweighed by its prejudicial impact. (People v. Villatoro (2012) 54 Cal.4th 1152, 1163 (Villatoro); Falsetta, supra, 21 Cal.4th at pp. 917-918.) Indeed, section 352 is the safeguard that renders section 1108 constitutional and the statute incorporates section 352 by reference. (Falsetta, supra, at p. 917.) Defendant contends because the trial court did not conduct a section 352 analysis, its admission of the evidence under section 1108 violated his right to due process.

Trial courts are not required to conduct an express section 352 analysis, however. The California Supreme Court has made clear that on review, we may "'infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.'" (Villatoro, supra, 54 Cal.4th at p. 1168, quoting People v. Padilla (1995) 11 Cal.4th 891, 924, overruled in part on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; accord, People v. Williams (1997) 16 Cal.4th 153, 213-214.) Defendant acknowledges this, but asserts the record does not suggest the trial court conducted an implicit balancing either. We disagree.

In Villatoro, the Court of Appeal had inferred that the trial court undertook a section 352 analysis from the following statement made by the trial court: "'[CALCRIM No.] 1191, for the record, I've given you both a copy based on the instruction given in [People v.] Wilson [(2008) 166 Cal.App.4th 1034 (Wilson)].'" (Villatoro, supra, 54 Cal.4th at p. 1168.) The California Supreme Court agreed with the Court of Appeal's conclusion that "'[t]he trial court's express reliance on a key case in this area, considered in light of the entire record, allows us to infer that the trial court gave the instruction because it found that all the requirements of the holding in Wilson, including a section 352 analysis, had been satisfied.'" (Ibid.)

In this case, the People sought via in limine motion to admit evidence of prior sexual offenses under section 1108. Defendant opposed the motion and after the trial court heard initial argument, it took the matter under submission. Later, in the same proceeding, while discussing admission of the evidence under section 1101, the court expressly referred to its obligation to analyze the evidence under section 352.

Following a four-day recess, the court informed the parties it had read Cottone, Falsetta and section 1108 of Simons on California Evidence, and it granted the People's motion. The court expressly found the prior sexual offenses "appear to fall within the provisions of [section] 1108." The court then stated:

"It does appear that, in each of the instances, from reading the incident report, that the defendant ... knew that somebody was going to be present. He situated himself in a manner where he could not be ignored by the person who was present. In most of the cases—not all, but many of the cases—he was told to stop, but continued to masturbate. All of the alleged witnesses or victims to the masturbation were female guards or female staff. And the incident that occurred—the two incidents, one being the May 3rd, 2007, and the October 1st, 2008, more clearly indicate deliberate actions by [defendant] to bring attention to what he was doing. In one of those cases, he put his penis through the door that's used to—or the slot that is used to provide food. And then there was another occasion where he grabbed—he turned—he asked a person assisting him to turn around and get something. When that person turned back around, [defendant] was masturbating right in front of the person. So based upon all of those grounds, given the case law; particularly, Falsetta and the reading of [section] 1108, it appears that all of those instances would be allowed to be admissible in the People's case-in-chief, pursuant to [section] 1108." (Italics added.)

Subsequently, defendant filed a written objection to the section 1108 evidence on the grounds it was not timely disclosed, an issue discussed post, and it was unduly prejudicial under section 352. In relevant part, the trial court stated it had ruled the evidence was admissible and, referring to defendant's section 352 argument, stated, "I think I already addressed that when I made my ruling on Tuesday about this evidence." The court informed the parties it would read defendant's motion, although its tentative ruling was to deny the motion. After learning the prosecutor intended to start presenting the section 1108 evidence with its first witness, the trial court stated it was going to allow the evidence.

In Villatoro, the trial court's express reference to "'a key case'" in that area of the law, considered in light of the record, was a sufficient basis to permit the reviewing court to infer that the trial court had conducted an implicit weighing under section 352. (Villatoro, supra, 54 Cal.4th at p. 1168.) As the California Supreme Court noted in Villatoro, section 1108 expressly incorporates admissibility under section 352 (Villatoro, supra, at p. 1168), and here, the trial court stated it had read an evidence manual and Falsetta, which discusses section 1108 and the role of section 352 as a safeguard (Falsetta, supra, 21 Cal.4th at pp. 916-917).

Moreover, the trial court here referred to section 352 expressly and discussed the specifics of the prior sexual offenses in the context of finding the evidence admissible. The court was also aware of defendant's renewed written objection to the evidence and believed it had already addressed the issue in its earlier ruling. Under these circumstances, defendant's argument that the trial court failed to conduct even an implicit balancing under section 352 is untenable and is foreclosed under Villatoro, which involved, as far as we are able to discern, a record scant in comparison. (Villatoro, supra, 54 Cal.4th at p. 1168; see People v. Williams, supra, 16 Cal.4th at p. 213 ["All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352."].)

Defendant extended application of this same argument to admission of the evidence under section 1101. Our rejection of his claim necessarily resolves his section 1101 argument.

C. Trial Court Did Not Abuse Discretion in Admitting Evidence

1. Requisite Inquiry Under Section 352

Relatedly, defendant claims the trial court erred in failing to exclude the evidence of the prior sexual offenses under section 352. In this case, defendant attacks the admission of the evidence on its probative value, inflammatory nature and remoteness, and on grounds of confusion of issues and consumption of time. The People disagree and contend defendant has not shown it was an abuse of discretion to admit the evidence.

"A court deciding whether evidence of one or more sexual offenses meeting the definitional requirements of ... section 1108 should nonetheless be excluded pursuant to ... section 352 undertakes a careful and specialized inquiry to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value. Specifically, the court weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], 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 ....'" (Merriman, supra, 60 Cal.4th at p. 41, quoting Falsetta, supra, 21 Cal.4th at p. 917; accord, Loy, supra, 52 Cal.4th at p. 61.)

However, "[t]he word 'prejudicial' is not synonymous with 'damaging.' [Citation.] Rather, evidence is unduly prejudicial under section 352 only 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.'" (People v. Johnson (2010) 185 Cal.App.4th 520, 534 (Johnson).

2. Standard of Review

On appeal, we presume the trial court's evidentiary ruling was correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Trial courts have broad discretion in determining the admissibility of evidence and we review challenges to the admission of evidence for abuse of discretion. (People v. Jackson (2016) 1 Cal.5th 269, 320-321; accord, People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova); Johnson, supra, 185 Cal.App.4th at p. 531.) Under this standard, the court's ruling "'"will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]'" (People v. Lewis (2009) 46 Cal.4th 1255, 1286; accord, People v. Jackson, supra, at p. 321.)

3. Analysis

a. Similarity Between Offenses

Turning first to similarity between the uncharged offenses and the charged offense, this factor is relevant but not dispositive. (Cordova, supra, 62 Cal.4th at pp. 133-134; Loy, supra, 52 Cal.4th at p. 63.) Section 1108 evidence "'is presumed admissible without regard to the limitations of ... section 1101.'" (Loy, supra, 52 Cal.4th at p. 63.) "'It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.'" (Ibid.)

Even so, the uncharged offenses and the charged offense in this case are strikingly similar. Defendant concedes this point except for the incidents involving Edith and Elisa, which did not involve him lying on his back in his cell masturbating. While the circumstances underlying these two incidents differed slightly from the others, they nevertheless involved defendant masturbating his exposed, erect penis in front of female staff and failing to cease masturbating when ordered to do so. We find defendant's argument that the incidents involving Edith and Elisa were sufficiently dissimilar to weaken their probative value unpersuasive.

The facts here are simply not analogous to those in People v. Harris (1998) 60 Cal.App.4th 727, cited by defendant. In that case, the Court of Appeal found the trial court abused its discretion in admitting evidence of a prior uncharged offense and the error was prejudicial. (Id. at p. 741.) However, there was a confluence of unusual factors in that case which were not present here. (Id. at pp. 737-741.) In particular, the uncharged offense was incredibly violent and the court described the evidence as "inflammatory in the extreme." (Id. at p. 738; see Johnson, supra, 185 Cal.App.4th at p. 535.) In addition, the court found the evidence was remote, nearly irrelevant and likely to cause the jury confusion. (People v. Harris, supra, at p. 741.) These are not material factors in this case.

b. Sources' Lack of Independence

Citing to People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), defendant also contends the probative value of the evidence is reduced because the incidents are connected to one another by virtue of the fact that the incident reports are located in his central file and accessible by correctional staff. Further, as defendant testified, when an inmate is labeled "an IX'er," or inmate exhibitionist, female staff jump to conclusions.

In Ewoldt, the California Supreme Court stated, "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." (Ewoldt, supra, 7 Cal.4th at p. 404) Although Ewoldt addressed the admissibility of the challenged evidence under section 1101, the California Supreme Court subsequently discussed the factor as relevant in determining the probative value of section 1108 evidence. (Falsetta, supra, 21 Cal.4th at p. 917, citing People v. Balcom (1994) 7 Cal.4th 414, 427; accord, People v. Lewis, supra, 46 Cal.4th at p. 1287.)

We are unpersuaded by defendant's argument that the incidents are not sufficiently independent from one another. First, defendant admitted the incidents of masturbation involving Demetria, Maria, and Adrienne, and admitted it was possible he was masturbating when Skye came to his cell; it was his intent he disputed. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1100 [probative value of conduct not diminished by lack of independence where the defendant admitted conduct].) And although he denied taking off his clothes or masturbating in the holding cell, Elisa's account was corroborated in part by Sergeant Weatherford, who testified defendant was trying to pull his clothing back up over his erect penis.

Further, defendant cites nothing in the record suggesting the victims were familiar with the reports in his central file, knew one another or were otherwise aware of the details of the other incidents such that the incidents' independence from one another was undermined. Notably, each of the incidents was documented in a written rules violation report, disciplinary proceedings were commenced, and defendant was punished; the existence of contemporaneous disciplinary reports for each incident supports their independence from one another. (People v. Lewis, supra, 46 Cal.4th at p. 1287.) Under the circumstances, we find defendant's contrary claim that the sources lacked independence from one another purely speculative.

c. Inflammatory Nature of Uncharged Offenses

Defendant also claims the uncharged offenses involving Edith and Elisa were more inflammatory than the charged offense and, in combination, the number of uncharged offenses introduced into evidence was inflammatory. We are again unpersuaded. While the incidents involving Edith and Elisa differed slightly, they shared substantial similarities, as previously discussed, and we do not agree the details of either was significantly more inflammatory than the charged offense. (See People v. Harris, supra, 60 Cal.App.4th at p. 738 [evidence of vicious, bloody beating of a stranger extremely inflammatory and significantly different from charged crimes involving breaches of trust by a caregiver].) Defendant also fails to cite any authority for the proposition that admitting evidence of six uncharged offenses was, cumulatively, inflammatory where the uncharged offenses were materially the same as the charged offense, none involved violence or other shocking details, and the evidence was neither complex nor extensive, as noted below.

Defendant cites to People v. Williams (1998) 17 Cal.4th 148, 161 (discussing factors courts must consider in ruling on a motion to strike or vacate a prior serious or violent felony conviction under the Three Strikes law), People v. Stuart (2008) 159 Cal.App.4th 312, 314 (discussing use of prior convictions as aggravating circumstances for purposes of sentencing), and California Rules of Court, rule 4.421(b)(2) (setting forth factors in aggravation for purposes of sentencing), but we find those authorities inapt.

d. Remoteness

Defendant argues the uncharged offenses were remote in time. While relevant, remoteness alone does not compel exclusion of evidence and courts have declined to exclude evidence in cases involving prior offenses substantially more remote in time than those here. (Cordova, supra, 62 Cal.4th at p. 133 [18 years]; People v. Hernandez (2011) 200 Cal.App.4th 953, 968 [up to 40 years]; Johnson, supra, 185 Cal.App.4th at pp. 524, 531, 535-536 [18 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years].) "In assessing remote priors, the cases have examined the details of the past misconduct, comparing them to the details of the currently charged offense, to determine whether the similarities in the two incidents 'balance out the remoteness' of the prior offense." (Johnson, supra, at pp. 535-536.) There is an approximately six-year break in time between defendant's last prior uncharged offense and the charged offense in this case, but given that even a passage of decades is insufficient to preclude evidence as unduly remote, a mere six-year break simply does not weigh against the admission of the evidence and defendant concedes as much.

e. Risk of Confusion

In this case, the jury was tasked in the same proceeding with determining defendant's guilt, whether he suffered a prior conviction under Penal Code section 314 and whether he suffered a prior felony conviction within the meaning of the Three Strikes law. As a result, the prosecutor presented documentary evidence of defendant's prior 2009 conviction for indecent exposure. No other prior conviction evidence was presented with respect to the uncharged offenses. Relying on Ewoldt, defendant argues the absence of evidence regarding convictions for uncharged offenses increases the risk of confusing the jury and the risk the jury may be inclined to punish the defendant for the uncharged offenses. (Ewoldt, supra, 7 Cal.4th at p. 405.)

In Ewoldt, the court explained, "[T]he prejudicial effect of th[e] evidence is heightened by the circumstance that [the] defendant's uncharged acts did not result in criminal convictions. This circumstance increased the danger that the jury might have been inclined to punish [the] defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses, and increased the likelihood of 'confusing the issues' (Evid. Code, § 352), because the jury had to determine whether the uncharged offenses had occurred." (Ewoldt, supra, 7 Cal.4th at p. 405; accord, Falsetta, supra, 21 Cal.4th at p. 917; People v. Tran (2011) 51 Cal.4th 1040, 1047.) Here, however, defendant points to nothing in the record suggesting the jury was motivated to punish him for committing the uncharged offenses. (People v. Hernandez, supra, 200 Cal.App.4th at p. 969.) Other than the 2009 conviction, the jury was not informed one way or the other regarding criminal convictions stemming from defendant's conduct, but it was aware the witnesses had testified in prior proceedings and written reports, and it was expressly informed that for each offense, a prison disciplinary proceeding was conducted and defendant was punished.

The jury was confused regarding the need to make findings on the prior convictions, which the trial court attributed to the fact it did not go over the verdict form with the jury before the jury initially retired to deliberate because the verdict form was not yet ready. There is no indication this confusion related in any way to the jury's desire to punish defendant for the uncharged offenses, however.

Additionally, the trial court instructed the jury not to use the "evidence for any other purpose, except for the limited purpose of determining the defendant's credibility, intent, motive, or whether there was a mistake or accident," and not to "conclude from th[e] evidence that the defendant has a bad character or is disposed to commit crime." On review, we assume the jury understood and followed the court's instructions. (People v. Hernandez, supra, 200 Cal.App.4th at p. 969.) Defendant does not explain how the jury might have otherwise been confused by the uncharged offense evidence, and we reject the arguments advanced. (Merriman, supra, 60 Cal.4th at p. 42.)

f. Undue Consumption of Time

Finally, defendant argues testimony on the uncharged offenses, and the parties' arguments over the admissibility of the evidence, consumed more time than did the evidence on the charged offense. Defendant is technically correct, but we nevertheless disagree that evidence of the six uncharged offenses amounted to an undue consumption of time. With the exception of very brief rebuttal testimony by the correctional sergeant, the testimony was limited to one witness for each of the six uncharged offenses and the single charged offense. Further, the evidence of the prior uncharged offenses acts was neither complex nor extensive. (See Johnson, supra, 185 Cal.App.4th at p. 533.)

g. Conclusion

In sum, "section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative ... [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].'" (People v. Tran, supra, 22 Cal.4th at p. 1047, quoting People v. Waidla (2000) 22 Cal.4th 690, 724; accord, People v. Jones (2013) 57 Cal.4th 899, 948-949.) Moreover, under section 1108, there is a "presumption favoring the admissibility of sexual offense evidence ... to show propensity to commit the charged offense." (Merriman, supra, 60 Cal.4th at p. 42, italics added; accord, Loy, supra, 52 Cal.4th at p. 62; People v. Soto (1998) 64 Cal.App.4th 966, 984 (Soto).) In this case, we conclude the uncharged propensity evidence was highly probative and was not substantially outweighed by its prejudicial impact. As such, the trial court did not abuse its discretion under section 352 when it admitted evidence of the six uncharged offenses.

Given our conclusion there was no error, we do not reach the issue of prejudice.

II. Untimely Disclosure of Section 1108 Evidence

A. Background

Under section 1108, subdivision (b), the People are required to "disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the requirements of Section 1054.7 of the Penal Code." Penal Code section 1054.7 in turn requires, in relevant part, that "disclosures ... be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred."

Defendant claims the trial court erred in failing to exclude the section 1108 evidence based on the prosecutor's failure to comply with the 30-day notice requirement set forth in Penal Code section 1054.7. The People contend that inasmuch as defendant received the rules violation reports of the incidents more than 30 days before trial, the evidence was properly disclosed. In addition, they contend that defendant failed to seek a continuance, thereby demonstrating he suffered no prejudice. In response, defendant argues the notice requirement is not satisfied by providing "masses of material" and it requires the prosecutor declare the intention to use the material at trial.

As discussed ante, one week before trial, the prosecutor sought via motion in limine to admit evidence of uncharged sexual offenses under section 1108. In response, defendant sought to exclude such evidence, arguing, "The People have expressed their intent to introduce prior sexual crimes as character evidence under ... section 1108. This section requires strict compliance with Penal Code section 1054.7, including at least 30 days prior notice. It also allows only for evidence of 'sexual offense,' which is expressly defined to include only crimes. (Evid. C[ode,] § 1108[, subd. (d)(1)(A))]; People v. Cottone[, supra,] 57 Cal.4th [at p. ]281.) The issue here would be whether any of the prior conduct was a crime under Penal Code section 314. None resulted in convictions, none were in a public place, and the court would need to conduct successive hearings [to] preliminarily determine whether any are 'crimes,' before the information could be presented to a jury."

The parties' motions in limine were filed and heard on October 7, 2015. Jury selection commenced on October 13, 2015, and the presentation of evidence commenced on October 15, 2015.

A week later, defendant filed a renewed objection to the admission of the section 1108 evidence and, in greater detail than previously, argued the prosecutor failed to comply with the 30-day notice requirement. He claimed the admission of the untimely disclosed evidence "tends to take the defense by ambush. Its introduction into evidence violates [defendant's] right to due process, to prepare and present a defense, and to the adequate assistance of counsel. It should be excluded."

B. No Error in Failing to Exclude Evidence as Sanction

Both parties rely on this court's decision in Soto to support their contrary positions on the timeliness and adequacy of the disclosure. In Soto, the defendant claimed the trial court erred in admitting section 1108 evidence at trial because the prosecutor failed to comply with the 30-day notice requirement. (Soto, supra, 64 Cal.App.4th at pp. 979-980.) The prosecutor had, more than 30 days before trial, produced the police report containing the victims' claims they were molested by defendant as children and stated his intention to use those incidents in the police report under section 1108. (Soto, supra, at p. 981.) The defendant, however, claimed he was entitled to a detailed statement of the evidence. (Id. at pp. 980-981.)

In Soto, we recognized that "[t]he notice and disclosure requirements were designed to 'protect the defendant from unfair surprise and provide adequate time for preparation of a defense.'" (Soto, supra, 64 Cal.App.4th at p. 980.) We concluded that the reports provided "a summary of the substance of the proposed testimony," and the prosecutor's statements "provided sufficient notice of his intent to introduce such evidence at trial pursuant to section 1108." (Id. at p. 982).

As an initial matter, we observe that section 1108 became effective on January 1, 1996, and Soto addressed the 30-day notice issue fewer than six months later. Here, in contrast, we are reviewing a claim of insufficient notice more than two decades after section 1108 became effective. In the decades since Soto, the introduction of uncharged sexual offense evidence under section 1108 has become well established. This distinction in context bears mention where, as here, a bald claim of surprise and prejudice is advanced notwithstanding the timely production of the incident reports regarding each uncharged offense.

Next, defendant's argument reads too much into the verbal notice given by the prosecutor in Soto. While that is one of the two factors relied on in finding the defendant in Soto was given adequate notice, what constitutes adequate notice depends on the facts of each case. We do not read Soto as holding that a prosecutor is required to give formal notice, verbal or otherwise, and defendant cites no other authority for this proposition.

The disclosure requirement is intended to prevent unfair surprise and allow the defense adequate time to prepare. (Soto, supra, 64 Cal.App.4th at p. 982.) The parties do not dispute that the prosecutor disclosed the underlying prison disciplinary reports more than 30 days before trial. Defendant claims, however, that the prosecutor did not specifically inform him of the intent to introduce the evidence summarized in the reports under section 1108. We view the disclosure of the reports in this case as akin to the disclosure of the police report in Soto. So long as the reports provided the defense with "a summary of the substance of the proposed testimony" (Soto, supra, at p. 982), the requirement that the evidence to be offered under section 1108 be disclosed is satisfied (§ 1108, subd. (b)).

Defendant does not contend the reports were deficient in this respect, but he dismisses the prosecutor's timely disclosure of the reports as "simply providing a mass of information without an indication of purpose ...." As we interpret this argument, and its counterpart below, defendant is suggesting disclosure of the reports was insufficient to provide adequate notice of the information that was admissible under section 1108. However, the record is devoid of any suggestion that the discovery was so voluminous or so general in content that it was not reasonable for counsel to have anticipated its use under section 1108. Defendant bears the burden of demonstrating error on appeal (People v. Giordano, supra, 42 Cal.4th at p. 666), and for the reasons we have set forth, we do not agree that the prosecutor violated the 30-day disclosure requirement (see People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 ["'[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'"]).

C. Prejudice

As well, we agree with the People that defendant's failure to pursue his need for a continuance is fatal to a claim of prejudice attributable to late notice. The focus of defendant's late notice argument is the wrongful admission of the evidence; he claims on appeal that the trial court erred in failing to exclude the evidence. However, defendant cites no authority for the proposition that, even if we assume a violation occurred, he was entitled to exclusion of the evidence as a remedy for failing to comply with the 30-day notice requirement.

The trial court's power to impose sanctions is limited. (Pen. Code, § 1054.5, subd. (c); People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459 (Mitchell); People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 48-49.) "Ordinarily, unless the untimely notice adversely affected earlier proceedings, the failure to seek a continuance precludes any showing of prejudice attributable to delay in giving notice of aggravating evidence." (People v. Medina (1995) 11 Cal.4th 694, 771; accord, People v. Mayfield (1997) 14 Cal.4th 668, 778-779, abrogated in part on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) The trial court is permitted to exclude witness testimony "only if all other sanctions have been exhausted." (Pen. Code, § 1054.5, subd. (c); People v. Bowles (2011) 198 Cal.App.4th 318, 325-326; Mitchell, supra, at p. 459.) "[T]he exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) "[T]he prejudice would necessarily have to be substantial and irremediable[, and] ... the consequence to the truth-finding process would have to be carefully balanced. It should not be lightly considered that the consequence of exclusion of significant evidence may so distort the truth-finding process as to undermine its reliability." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758.)

In his written motions in limine, defendant mentioned the lack of a 30-day notice but did so only briefly. He did not seek a continuance and made no representation that the lack of notice had resulted in prejudice. The next week, defendant informed the court he had been doing some investigation into the prior sexual offenses and he stated that if the court permitted Edith to testify, he was requesting to have his investigator testify about her efforts to reach witnesses and read their prior testimony into the record. In the alternative, he sought a continuance. The trial court acknowledged defendant still had time for his investigator to work on locating witnesses and directed him to provide some authority for his request to use transcripts due to witness unavailability.

The next day, defendant filed his renewed objection to the section 1108 evidence, which included more extensive argument on the 30-day notice issue. Defendant again sought exclusion of the evidence as the remedy. The record suggests some frustration on the trial court's part with defendant's renewed objection to the evidence, which was raised after jury selection and on the day trial testimony was set to commence. The court pointed out that motions in limine were heard the prior week, the court had then been dark Friday and closed Monday for a holiday. Although the court acknowledged some preparation must be done during regular business hours, such as issuing witness subpoenas, it nevertheless believed defendant should have raised the issue earlier and it did not believe he was surprised by the section 1108 evidence. The court stated, "I'm going to allow the People to present the evidence. [¶] And then we will revisit the question on whether or not ... you need—you said a continuance. [¶] It's not going to be, like, a week, If we get to that point, it may be a day. [¶] You're going to have this weekend too to still work on this case. So—and you've already had—I understand you said you had other problems or other obligations. But you had the 8th, the 9th, the 10th, the 11th, the 12th. And then after the case was confirmed, the 3rd, the 4th, the 5th, the 6th, before the case even came here, to do some work on these matters. But the tentative is to deny. [¶] So let's go forward."

Defendant does not identify any further discussion in the record regarding his need for a continuance and he does not argue that he pursued the request further. We note that the next day, in the context of determining whether to excuse an alternate juror who was unable to make it to court, defendant represented that he did not intend to call any witnesses other than defendant, possibly.

Under these circumstances, we find the denial of defendant's motion to exclude the evidence was not an abuse of discretion. We disagree notice was inadequate, but in any event, defendant has not shown he suffered any prejudice given his failure to revisit any need for a continuance. (People v. Medina, supra, 11 Cal.4th at p. 771.)

III. Exclusion of Evidence Relating to Disposition of Two Uncharged Offenses

A. Background

In the trial court, defendant, relying on People v. Griffin (1967) 66 Cal.2d 459 (Griffin) and People v. Mullens (2004) 119 Cal.App.4th 648 (Mullens), sought the admission of evidence that the offense against Edith resulted in convictions for simple battery and indecent exposure and those convictions were reversed on appeal on statute of limitations grounds. He also sought the admission of evidence that another of the uncharged offenses was dismissed "in furtherance of justice" pursuant to Penal Code section 1385. Defendant argued below that the evidence "establish[ed] that the issue was previously addressed in such a way that the crime was not legally proven beyond a reasonable doubt" and the "additional procedural information should be admitted ...."

In the criminal case arising from the incident involving Edith, the jury acquitted defendant of battery but convicted him of simple assault and indecent exposure. Those convictions were subsequently reversed on appeal as time-barred. Edith testified that defendant grabbed her sleeve and attempted to pull her hand to him, but after some discussion regarding this act and the acquittal on the battery count, the parties stipulated that the evidence of the act should be disregarded and not considered for any purpose. As a result, the acquittal on the battery charge is not relevant to defendant's argument on appeal nor does he contend otherwise.

In relevant part, the statute provides, "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (Pen. Code, § 1385, subd. (a).)

After giving defendant an opportunity to provide authority for the proposition that the dispositions at issue were analogous to an acquittal and, therefore, admissible under Griffin and Mullens, the trial court excluded the evidence on the ground that any probative value was outweighed by prejudicial impact. (§ 352.) The court explained that the government's decision to dismiss a case in furtherance of justice could mean many different things, and the reversal on statute of limitations grounds was not relevant to the section 1108 evidence.

On appeal, defendant argues that "[b]y denying the defense request to present evidence showing how the criminal justice system dealt with some of the offenses, the trial court denied defendant his right to have the jury consider his response to the other crimes evidence." The People point out that defendant has not provided any authority for the proposition that a dismissal in the furtherance of justice or on statute of limitations grounds must be admitted, and the holdings in Griffin and Mullens are inapplicable. The People also contend any error was harmless.

B. No Error in Excluding Evidence

In Griffin, the California Supreme Court held that evidence of a subsequent crime committed by the defendant in Mexico was admissible in his murder trial, but concluded that the trial court erred in excluding the evidence that he was also acquitted of that charge by a Mexican court. (Griffin, supra, 66 Cal.2d at p. 465.) The* court acknowledged the risk of serious prejudice had led some courts to conclude "that an acquittal so attenuates the weight that may properly be given evidence of another crime as to require the exclusion of such evidence altogether." (Id. at p. 466.) The court explained, "Our rule does not go that far, but instead is fair to both the prosecution and the defense by assisting the jury in its assessment of the significance of the evidence of another crime with the knowledge that at another time and place a duly constituted tribunal charged with the very issue of determining defendant's guilt or innocence of the other crime concluded that he was not guilty." (Ibid., fn. omitted.)

Subsequently, in Mullens, the Court of Appeal held that the so-called Griffin rule applies to section 1108 evidence. (Mullens, supra, 119 Cal.App.4th at p. 665.) The court stated, "Evidence that a defendant was acquitted of a prior sex offense does not mean that the crime did not happen or that the defendant did not commit that offense; it means 'only that the state did not prove every element of the crime beyond a reasonable doubt' [citation]. The concept of an acquittal is easily understood, and appropriate jury instructions explaining the significance of an acquittal will cure any risk of confusion that might result from admission of evidence that the defendant was acquitted of an uncharged sex offense the jury is permitted to consider under section 1108. Furthermore, as the [Alaska Supreme Court has] recognized, evidence of an acquittal may help the jury weigh the evidence of the prior act." (Id. at pp. 668-669, quoting Hess v. State (Alaska 2001) 20 P.3d 1121, 1125, fn. omitted.)

Defendant's argument is underpinned by the principle that criminal defendants must be afforded the opportunity to respond to evidence offered against them under section 1108. As set forth more fully in Cottone, however, the California Supreme Court summarized that under section 1108, "the jury must determine whether the defendant committed the act in question. Only if the jury so concludes by a preponderance of the evidence can it consider such evidence in deciding whether the defendant is guilty of the charged crimes. [Citations.] It must also consider the defense response to the evidence. '[W]hen evidence of other crimes or acts has been admitted for some purpose an accused should be allowed to explain or deny the transactions.' [Citation.] For example, the defendant may introduce evidence of a previous acquittal of criminal charges relating to acts admitted under section 1101 or 1108. [Citations.] The defendant also may challenge the inference the prosecution urges should be drawn from the conduct by calling into question his state of mind or motive [citation] or by introducing competing evidence of good character [citation]. Finally, the jury must decide whether that act demonstrates the defendant's propensity to commit the charged sexual offenses. If not, the jury may accord the evidence no weight." (Cottone, supra, 57 Cal.4th at pp. 287-288, fn. omitted.)

We conclude that under the circumstances presented here, the trial court did not abuse its discretion in finding that Griffin and Mullens did not support admission of the evidence. As the trial court recognized, the government's decision to move for dismissal under Penal Code section 1385 may be based on any number of considerations and the basis for the government's decision in the relevant case was not discernible from the record. Further, a dismissal on statute of limitations grounds is procedural in nature. Neither disposition speaks to any substantive determination by a trier of fact on the issue of guilt or innocence with respect to the criminal charges brought. (Griffin, supra, 66 Cal.2d at p. 466; Mullens, supra, 119 Cal.App.4th at p. 666.) We also observe that in contrast to an acquittal, neither disposition here is a concept as "easily understood" by a trier of fact. (Mullens, supra, at p. 668.)

Section 352 permits the exclusion of "evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger ... of confusing the issues, or of misleading the jury." While the trial court spoke expressly of probative value and prejudice, as we previously recognized, "'we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Zamudio, supra, 43 Cal.4th at p. 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)

Moreover, we reject any suggestion that the exclusion of this evidence deprived defendant of an opportunity to respond to the section 1108 evidence. (Cottone, supra, 57 Cal.4th at p. 288.) Defendant elected to testify, during which he had the opportunity to explain or deny each incident; and his testimony bore directly on the issue of his intent. (Ibid.) Accordingly, we reject defendant's claim that the trial court abused its discretion in excluding evidence of the dispositions of two of the uncharged offenses. Although we need not reach the issue in light of this conclusion, we also agree with the People that any arguable error in excluding the evidence was harmless, because there is no "'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.)

"Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [test under People v. Watson (1956) 46 Cal.2d 818, 836-837]: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; accord, People v. Lucas (2014) 60 Cal.4th 153, 263, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.)

IV. Instructional Error

A. CALCRIM No. 1191

CALCRIM No. 1191 was renumbered to 1191A in March 2017. (People v. Gonzales (2017) 16 Cal.App.5th 494, 496, fn. 1 [CALCRIM No. 1191 modified in 2017 to distinguish between uncharged and charged offenses offered as propensity evidence; CALCRIM No. 1191A applies evidence of uncharged sex offenses and CALCRIM No. 1191B applies to evidence of charged sex offenses].)

Pursuant to CALCRIM No. 1191, the trial court instructed the jury as follows:

"The People presented evidence that the defendant committed other offenses or other acts that were not charged in this case. The People presented evidence of other behavior by the defendant that was not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses or acts.

"Proof by a preponderance of evidence is a different burden of proof than proof beyond a reasonable doubt.
"A fact is proved by a preponderance of evidence if you consider that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.

"If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required to, consider the evidence for the limited purpose of deciding whether those acts - deciding whether or not—

"Let me read that to you again.

"If you decide that the defendant committed the uncharged acts—offenses or acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person or sexually offending another person; or the defendant had a motive to commit the offense alleged in this case; or the defendant's alleged actions were the result of mistake or accident.

"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the acts and the charged offense.

"Do not consider this evidence for any other purpose, except for the limited purpose of determining the defendant's credibility, intent, motive, or whether there was a mistake or accident. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.

"If you conclude that the defendant committed the uncharged acts or offenses, that conclusion is not—strike that—that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of indecent exposure, as charged in Count 1. The People must still prove the charge beyond a reasonable doubt." (Italics added.)

Defendant objects to the inclusion of language describing uncharged crimes or offenses as uncharged acts. He contends this error allowed the jury to "use any of the incidents of masturbation as propensity evidence, even if it determined they did not amount to crimes" and "to use [defendant's] drawings of [Edith] ... to find he had the propensity to commit the charged offense." Anticipating the People's forfeiture argument, defendant contends he objected generally to the instruction and, in any event, when a trial court instructs the jury, it is required to give instructions correct under the law. The People maintain this claim is forfeited because defendant failed to object to the language, the instruction was a correct statement of law, and it was defendant who introduced the evidence of his explicit drawing of Edith.

B. Standard of Review

We review allegations of instructional error de novo. (People v. Waidla, supra, 22 Cal.4th at p. 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677.) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)

C. Any Error Harmless

As an initial matter, defendant represents that he objected generally to CALCRIM No. 1191, but he cites to a portion of the record in which he objected to CALCRIM No. 1190. Obviously, his objection to one instruction does not assist him in demonstrating that he preserved for appeal a challenge to an entirely different instruction. Nor does it fulfill counsel's duty "'to refer us to the portion of the record supporting [the defendant's] contentions on appeal.'" (People v. Smith (2015) 61 Cal.4th 18, 48.) Based on our own review of the record, defendant did not object to CALCRIM No. 1191 generally or to the inclusion of the word "acts" specifically. Rather, he sought and was granted a modification of the instruction to include language from the decision in Falsetta.

CALCRIM No. 1190 provides: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone."

Nevertheless, when a defendant asserts that an instruction is incorrect in law, an objection is not required. (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7; Pen. Code, § 1259.) This principle applies "to all such instructional claims except to those where we explicitly conclude that [the] defendant's failure to seek modification or clarification of an otherwise correct instruction resulted in forfeiture." (People v. Capistrano, supra, at p. 875, fn. 11.) In this case, assuming without deciding that the issue is not forfeited and the trial court committed technical error in failing to confine its language to crime or offense, the error was harmless whether reviewed under the federal or state standard of review.

D. Analysis

Prior to the first witness's testimony, the jury was instructed, in relevant part, "You will hear evidence of other sexual offenses not charged in this case. The other sexual offenses are not sufficient by themselves to prove the commission of the charged offense." Additionally, during closing argument, both parties specifically drew the jury's attention to the six uncharged masturbation offenses, and defense counsel focused the jury's attention on the instruction that it is not a crime to masturbate in prison and he argued lack of intent as to all seven incidents of masturbation—uncharged and charged. Given that the charged and uncharged offenses were all crimes of indecent exposure arising from acts of masturbation and that the main trial focus was defendant's intent, defendant fails to persuade us that the court's inclusion of the word "acts" in instructing the jury misled the jury with respect to its duty to determine whether the People proved by a preponderance of the evidence that defendant committed the six uncharged offenses or crimes.

Nor are we persuaded there is any possibility the instruction misled the jury into considering as propensity evidence the explicit drawing of Edith. The evidence that there was a dispute over an explicit drawing of Edith was offered by the defense to show the existence of a prior conflict between the two, thereby undermining Edith's credibility with respect to a prior uncharged offense. Although the prosecutor mentioned the drawing during closing argument, he did so only passingly and not in the context of the propensity evidence. To the contrary, it was clear from both parties' arguments that the propensity evidence at issue was the six uncharged incidents of indecent exposure.

Applying the more stringent federal standard of review, we conclude that given the strength of the prosecution's evidence, the charge to the jury as a whole and the focus of the parties' arguments, "it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt, supra, 2 Cal.5th at p. 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663.) Accordingly, we reject defendant's claim of prejudicial error.

V. Psychotherapist-patient Privilege

A. Background

Finally, the incident of masturbation witnessed by Skye occurred when she was making her rounds, which required her, in her capacity as a psychiatric technician, to engage each inmate in a conversation. Prior to trial, defendant filed a motion in limine seeking to exclude Skye's testimony based on psychotherapist-patient privilege. After hearing argument on the issue, the trial court denied the motion. The court concluded that no communication to which the privilege would attach occurred and that instead, Skye was a percipient witness in the situation.

On appeal, defendant cites Delaney v. Superior Court (1990) 50 Cal.3d 785, 800 for the proposition that information includes observations. He argues that because Skye came to his cell to evaluate his mental health, her observation of him masturbating "falls within the definition of information recognized by the Supreme Court and thus was confidential information covered by the psychotherapist-patient privilege."

The People respond that defendant's act was neither a privileged communication nor a conveyance of information to his psychotherapist. We agree

B. No Error

Section 1014 defines the psychotherapist-patient privilege, in relevant part, as follows:

"Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by:

"(a) The holder of the privilege.

"(b) A person who is authorized to claim the privilege by the holder of the privilege.

"(c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure."

A confidential communication is defined in section 1012 as follows:

"As used in this article, 'confidential communication between patient and psychotherapist' means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship."

"The psychotherapist-patient privilege has been recognized as an aspect of the patient's constitutional right to privacy." (People v. Stritzinger (1983) 34 Cal.3d 505, 511; accord, Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 446.) The privilege protects confidential communications "in order to encourage those who may pose a threat to themselves or to others, because of some mental or emotional disturbance, to seek professional assistance," and is broadly construed. (People v. Stritzinger, supra, at p. 511; accord, Sorenson v. Superior Court, supra, at p. 446.) The person seeking to invoke the privilege bears the initial burden of showing it is presumptively applicable. (People v. Gonzales (2013) 56 Cal.4th 353, 372.)

We agree with defendant that confidential communications between a patient and his psychotherapist may encompass more than verbal communications and that neither section 1018 nor section 1024, cited by the People, apply here. However, we do not agree with his claim that his act of masturbation was a privileged communication within the meaning of the law. Defendant cites no cases that apply the privilege in a circumstance analogous to that here and any reliance on Delaney v. Superior Court other than as authority for the proposition that observations may fall within the definition of confidential communication is misplaced, as that case addressed the confidential source privilege. (Delaney v. Superior Court, supra, 50 Cal.3d at pp. 792-793; see § 1070.)

Under section 1018, "[t]here is no privilege under this article if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort."
Under section 1024, "[t]here is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."

Skye testified defendant was on his bunk masturbating when she approached his cell to check on him and he ignored her command to stop. It is undisputed that Skye and defendant did not engage in conversation, let alone a conversation that arguably pertained to any matters relating to defendant's mental or emotional health and falling within the scope of a psychotherapist-patient relationship. Nor has defendant shown any connection between his engagement in the act of masturbation and an examination or observation by Skye relating to her assessment of his mental or emotional health. The fact that Skye was, as a general matter, engaged in psychiatric rounds and arrived at defendant's cell intending to assess his mental or emotional health does not transform any activity he happens to be engaged in into a confidential communication within the scope of the psychotherapist-patient privilege. This is particularly so where defendant has testified his activity had nothing to do with Skye and he was not aware of her presence until he heard someone say, "Oh, my God."

We agree with the trial court that Skye was merely a percipient witness in this situation and defendant's conduct was not a confidential communication protected by psychotherapist-patient privilege. Accordingly, the trial court did not err in admitting the evidence and we reject defendant's claim to the contrary.

DISPOSITION

The judgment is affirmed.

/s/_________

MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.


Summaries of

People v. Lewis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 30, 2018
F072763 (Cal. Ct. App. Aug. 30, 2018)
Case details for

People v. Lewis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TONY LEWIS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Aug 30, 2018

Citations

F072763 (Cal. Ct. App. Aug. 30, 2018)