Filed 10/25/17 P. v. Avila CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT AVILA, JR.,

Defendant and Appellant.

F072093

(Super. Ct. No. MCR045928)


OPINION

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Defendant Robert Avila, Jr., was charged with seven counts of committing a lewd or lascivious act upon D.B., a child under 14 years of age (Pen. Code, § 288, subd. (a) [counts 1-7]); and 11 counts of committing a forcible act of sexual penetration upon D.B. (id., § 289, subd. (a) [counts 8-18]). Later, at the prosecution’s request, counts 16 through 18 were dismissed. The information alleged that defendant perpetrated the offenses underlying counts 1 through 7 between January 1988 and July 18, 1988, when D.B. was 13 years old; and perpetuated the offenses underlying counts 8 through 15 between August 1988 and November 1989, when D.B. was at least 14 years old. The information also alleged that the special supplementary statute of limitations for certain sex crimes against minors (id., § 803, subd. (f)(1)) controlled.
The jury found defendant guilty as charged. In a bifurcated proceeding, the trial court deemed the criminal action timely under Penal Code section 803, subdivision (f)(1). Defendant received an aggregate sentence of 84 years: eight years on each of counts 1 and 8 through 15; and two years on each of counts 2 through 7.
Defendant makes several contentions on appeal. First, Evidence Code section 1108, subdivision (a), and CALCRIM No. 1191 (Evidence of Uncharged Sex Offense) unconstitutionally permit a jury to draw an inference about an accused’s propensity to commit sex offenses from evidence that he or she committed other uncharged sex offenses. Second, “[t]here is a reasonable probability that jurors construed the [trial court’s] instructions as a whole to permit conviction on the charged offenses upon proof less than required by the federal Constitution.” Third, pursuant to section 352, the court should have excluded the testimonies of six prosecution witnesses alleging that defendant committed uncharged sex offenses. Fourth, the court erroneously refused to allow a defense witness to testify that defendant did not molest him. Finally, a readback of testimony to the jury during deliberations that transpired in defendant’s absence and without his personal waiver violated his federal constitutional right to be present at all critical stages of trial. For the reasons set forth below, we reject these contentions and affirm the judgment.
STATEMENT OF FACTS
I. Charged and uncharged offenses related to D.B.
D.B. was born on July 19, 1974. He has known defendant, his godfather and uncle by marriage, for “all [his] life.” Defendant first started picking up D.B. from school when D.B. was eight or nine years old. According to D.B., he was brought to defendant’s house “[a]lmost every day.” Sometimes, defendant’s daughter M.S. was at the house.
a. Incidents at defendant’s house.
D.B. was nine or 10 years old when defendant molested him at the house for the first time. The abuse occurred “[p]retty much” “every time [defendant and D.B.] were together” and continued until D.B. was around 14 years old.
At trial, D.B. described what usually took place in the living room:
“[Defendant] would ask me to lay down with him, take a nap with him on the couch, and would molest me. [¶] . . . [¶] . . . He would make me lay beside him, . . . like, laying down long ways and him being behind me. [¶] . . . [¶] . . . [O]nce I would [pretend to] fall asleep . . . he would undo my pants, take my pants off. [¶] . . . [¶] . . . [H]e would touch my [penis] and take my pants off. And he would take his pants off and start . . . to have sex with me. [¶] . . . [¶] . . . He would pull [my underwear] off too . . . . [¶] . . . [¶] . . . [H]e would get on top of me with his pants down and have his penis out and put it in my butt. [¶] . . . [¶] . . . It didn’t feel right. It felt like something hard. [¶] . . . [¶] . . . [H]e would use K[-]Y [jelly] and put it between my butt cheeks and then he would put his penis there, in my butt cheeks, in my anus. [¶] . . . [¶] . . . It was erect. Then . . . he would, I guess, have an orgasm . . . [¶] . . . [¶] . . . and warm stuff would come out. [¶] . . . [¶] . . . [C]um would leak between my butt cheeks. I felt the warmth of it. [¶] . . . [¶] . . . I was scared.”
D.B. attempted to flee once, but defendant “beat [him] to the door,” “locked it,” and “made [him] go back to the couch.” Another time, defendant put his penis on D.B.’s lips.
Whenever D.B. spent the night at defendant’s house, he “always” slept in defendant’s bedroom. On at least 10 occasions, in the middle of the night, defendant removed D.B.’s pants, “play[ed]” with D.B.’s penis, and “ha[d] sex with [D.B.].” Once, M.S. walked into the bedroom and witnessed defendant touching D.B. inappropriately.
Approximately 20 times, defendant had D.B. drink Kool-Aid, which “tasted kind of funny” and caused D.B. to pass out. When D.B. woke up, he noticed that his pants were askew and felt discomfort and moisture in his anus.
D.B. was around 14 years old when defendant molested him at the house for the last time. Defendant had D.B. drink soda, which caused D.B. to pass out. When D.B. woke up, he noticed that his pants were askew and he felt discomfort and moisture in his anus.
b. Incidents elsewhere.
“[A] few times,” when D.B. was nine or 10 years old, he and defendant took day trips to or near Hensley Lake to cut wood. During the return trips, in defendant’s pickup truck, defendant had D.B. drink soda, which made D.B. drowsy. After D.B. rested his head on defendant’s lap at defendant’s behest, defendant unbuttoned D.B.’s pants and “play[ed] with [D.B.’s] penis” until they arrived home. D.B. never said anything because he was “really scared.”
More than once, when D.B. was nine or 10 years old, he and defendant took day trips to or near Millerton Lake and/or Hensley Lake to fish. Before and sometimes after they fished, defendant touched D.B.’s penis in the pickup truck.
“Quite a few times,” when D.B. was nine or 10 years old, he and defendant went to the countryside to “shoot some cans or whatever [they] found out there.” During the return trips, when D.B. rested his head on defendant’s lap, “the same thing would happen again.” In particular, during one such trip, defendant had D.B. drink soda, which made D.B. sleepy. After D.B. rested his head on defendant’s lap, defendant “start[ed] putting his hands in [D.B.’s] pants.” Then, defendant parked the pickup truck, opened the passenger side door, pulled D.B. halfway out, removed D.B.’s pants, and inserted his penis into D.B.’s anus. After defendant ejaculated, he “clean[ed] off [D.B.’s] butt and whatnot” and took him home.
Defendant drove a semi-trailer truck for a living. He sometimes brought D.B. with him on the job when D.B. was nine or 10 years old. “Every time” D.B. accompanied defendant, “something happened.” Once, when defendant and D.B. were on the road, defendant gave D.B. a drink, which made D.B. sleepy. After D.B. rested his head on defendant’s lap, defendant “und[id] [D.B.’s] pants” and “play[ed] with [D.B.].” Then, defendant parked the truck, opened the passenger side door, pulled D.B. halfway out, removed D.B.’s pants, lubricated D.B.’s anus, and inserted his penis into D.B.’s anus. After defendant ejaculated, he “clean[ed] [D.B.] up” and took him home. More than once, defendant molested D.B. while they were staying at a hotel overnight. On one occasion, defendant had D.B. eat something for dinner that made D.B. lethargic. Thereafter, defendant removed D.B.’s pajamas, “play[ed]” with D.B.’s penis, lubricated D.B.’s anus, and “g[o]t on top of” D.B. when D.B. was lying in a prone position.
c. Disclosure of sexual abuse.
When D.B. was 14 or 15 years old, he told his friends about “what was going on” between him and defendant. His friends remarked that he was “being drugged or something” and “[t]hat ain’t cool.” D.B. stopped going to defendant’s house. After D.B. graduated from high school, he wanted to report defendant. Before he could so do, defendant convinced him to meet at a truck stop. There, inside defendant’s semi-trailer truck, defendant pulled out a gun and threatened to kill D.B. D.B., who was fearful, agreed “to not say nothing.” At some point, he told M.S. that defendant threatened him.
For years, D.B. did not report defendant because he was “scared” of “what [defendant] might do to [him] if he found out.” However, D.B. “got irritated and scared for” the “little kids” that he saw “after school walk[ing] down [defendant’s] street.” By January 2013, he “got really fed up with the way [he]’d been feeling in [his] head” and decided to “say something and do something about this.” On January 21, 2013, in a parking lot, D.B. flagged down Officer Steven Boehm of the Madera Police Department and disclosed that defendant molested him in his youth. D.B. was subsequently interviewed by Detective Shant Sheklanian. Defendant was arrested on April 4, 2013.
II. Uncharged offenses related to other victims.
a. M.S.
M.S. was born in September 1970. She is defendant’s daughter. Once, when M.S. was nine or 10 years old, defendant had her drink Kool Aid, which made her lethargic. Subsequently, M.S. fell asleep on the living room couch. Later, she woke up and she felt defendant’s hand beneath her underwear. He was moving it “[b]ack and forth” on top of her vagina. When M.S. asked defendant what he was doing, he told her to “go back to sleep.”
Another time, when M.S. was around 14 years old, she was lying in bed between her mother and defendant when defendant touched her vagina. M.S. woke her mother and revealed what had happened. M.S.’s mother told defendant to stop.
Defendant threatened to “whoop[]” M.S. if she “ever said a word to anybody about anything that went on between [them].” M.S. did not report defendant because she was “intimidated” and “scared.” In 1995, a few months after getting married, M.S. confronted defendant about the abuse at defendant’s mother’s house. Defendant retorted that M.S. was “a liar,” “crazy,” and “making things up.” In 2012 or 2013, M.S. and D.B. shared their experiences with one another. D.B. mentioned that he was “in fear of his life” because defendant had threatened him but “wanted to do something about it” and “want[ed] justice to be served.” In March 2013, M.S. spoke to Sheklanian.
b. D.E.
D.E. was born in November 1966. He has known defendant, his uncle by marriage, “[s]ince [he] was little.” When D.E. was in elementary school, he visited defendant’s house “[e]very other Friday or something like that.” Defendant molested D.E. for the first time at the house. D.E. was sleeping face down on the living room couch when defendant mounted him. Defendant, who was only in his underwear, rubbed D.E.’s penis, removed D.E.’s underwear, and inserted his penis into D.E.’s anus. On another occasion, when D.E. was eight or nine years old, defendant had D.E. take a pill, which caused D.E. to fall asleep. When D.E. woke up, he was lying face down in defendant’s bedroom. Defendant, who was on top of D.E., removed D.E.’s shorts, inserted his penis into D.E.’s anus, and ejaculated.
When D.E. was in seventh grade, defendant drove him and his brother to Shaver Lake to fish. At night, defendant had D.E. take a pill, which caused D.E. to pass out. When D.E. woke up, he was lying face down in defendant’s pickup truck. Defendant, who was on top of D.E., inserted his penis into D.E.’s anus. Meanwhile, D.E. heard his brother crying in the back of the vehicle.
Defendant molested D.E. for the last time after D.E. graduated from high school. At defendant’s house, defendant gave D.E. beer, marijuana, and cocaine, which D.E. ingested. While D.E. was intoxicated and lying face down on the couch, defendant pulled down D.E.’s pants and underwear and inserted his penis into D.E.’s anus. At some point, M.S. entered the living room and saw defendant on top of D.E.
D.E. testified that defendant penetrated his anus “[m]ore than 25, 30 times.” In addition, defendant gave D.E. pills “[t]he times that he would approach [him].”
c. R.M.
R.M. was born in July 1965. He has known defendant, his uncle by marriage, since he was eight or nine years old.
When R.M. was 10 or 11 years old, he was molested by defendant “a dozen to 18 [times]” “[o]ver a 12- to 18-month period.” “Every time,” R.M. was under the influence of pills provided by defendant. On one occasion, R.M. accompanied defendant, a semi-trailer truck driver, on a local haul. On the road, defendant had R.M. ingest pills, which caused R.M. to fall asleep. By the time R.M. woke up, defendant had already parked the truck. Defendant removed R.M.’s pants and underwear, lubricated R.M.’s anus, and inserted his penis into R.M.’s anus. Afterward, defendant “[w]iped [R.M.] off with a towel or a rag” and “re-clothed” him. R.M. was “petrified.”
On another occasion, defendant brought R.M. with him to “help . . . put up some rocks . . . on houses or apartments.” Because they “didn’t finish the job,” defendant “had to get a hotel.” In the room, defendant had R.M. ingest pills, which caused R.M. to fall asleep. When R.M. woke up, he was lying on top of defendant in a supine position. Defendant held R.M.’s waist and “mov[ed]” his penis “all over [R.M.’s lubricated] groin area and butt.”
When R.M. was 11 years old, he and defendant went on a boar-hunting trip. They stopped at defendant’s friend’s place in Santa Barbara. There, defendant had R.M. ingest pills, which caused R.M. to fall asleep. When R.M. woke up, he saw defendant fondling his penis.
Defendant molested R.M. for the last time during a fishing trip at Millerton Lake. He had R.M. ingest pills, which caused R.M. to doze off. When R.M. woke up, he was lying face down in defendant’s pickup truck and felt his pants “around [his] ankles.” The driver’s side door was open and R.M. was hanging halfway out. Defendant placed his penis on R.M.’s buttocks, but he was unable to penetrate the anus because R.M. began screaming. Defendant covered R.M.’s mouth with his hand and said, “Shh, shh, shh, shh, quiet, [R.M.]. Quiet.” Thereafter, defendant repositioned R.M. and fixed R.M.’s pants.
R.M. did not report defendant because he was “confused,” “[d]azed,” “[a]fraid,” and “[e]mbarrassed.” In 2012, he heard about the child abuse scandal involving Jerry Sandusky, which “opened the box.” R.M. spoke to his parents and then to Sheklanian about the abuse.
d. A.R.
A.R. was born in June 1982. She has known defendant, her stepfather, since she was five years old.
Defendant molested A.R. for the first time when she was 11 years old. A.R., who had been unable to sleep, walked into the living room. Defendant, who was sitting on the couch, offered to massage A.R.’s back. According to A.R., a back massage normally soothed her and defendant previously rubbed her back without incident. On this occasion, however, she felt defendant’s hand on top of her vagina. A.R. left the living room. When defendant asked her if “everything was okay,” she said she was “just tired” and “going to bed.” Once A.R. was in her bedroom, she cried.
A few weeks later, defendant molested A.R. again. Defendant, a semi-trailer truck driver, brought A.R. along on a trip to Arizona. After defendant completed his deliveries, he parked the truck at a rest stop to sleep. At some point during the night, A.R. felt defendant’s hand touching her vagina and his erect penis on her buttocks. She left the truck and went to the restroom. A.R. came back to the truck but did not go back to sleep. During the return trip, defendant told A.R. to “tell him that [she] loved him” and “not . . . mention anything or else [they] would never go back home.” A.R., who was “scared,” “told him that [she] loved him” to “get back home to [her] mom.”
Following these incidents, A.R. took measures to “try to prevent something else from happening.” Before she slept, she attached a string and a bell to her bedroom door, which would alert her if defendant tried to enter, and/or positioned her mattress to blockade the door.
e. M.
M. was born in January 1955. He is defendant’s younger brother. When M. was 11 or 13 years old, he shared a bedroom with defendant for about a year. During this period, defendant molested M. more than once a month. At nighttime, in their bedroom, defendant whispered to M., “[D]o you want to do it?” He massaged M.’s shoulders and back before climbing into M.’s bed. He fondled M.’s penis and put his saliva and Vaseline “between [M.’s] legs.” Defendant inserted his penis into M.’s anus and ejaculated. Afterward, “he’d clean [M.] . . . and hi[m]self off” with a rag. Defendant offered M. money, a driving lesson, and other gifts in exchange for M.’s silence. The abuse ended after defendant married and moved out of the house. Due to his shame, M. did not tell anyone about the abuse until he was 30 or 35 years old.
DISCUSSION
I. Law governing the admissibility of propensity evidence in sex offense cases.
Generally, “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.” (§ 1101, subd. (a).) However, “[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 [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352.” (§ 1108, subd. (a).) “Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of [the California Supreme Court] indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
“[S]ection 1108 ‘radically changed’ the general rule prohibiting propensity evidence in ‘sex crime prosecutions.’ [Citation.] ‘By removing the restriction on character evidence in . . . section 1101, . . . section 1108 now “permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose” [citation], subject only to the prejudicial effect versus probative value weighing process required by . . . section 352.’ [Citation.] Evidence of prior crimes is admissible, unless otherwise excluded by . . . section 352, whenever it may be helpful to the jury on a commonsense basis, for resolution of any issue in the case, including the probability or improbability that the defendant has been falsely accused. [Citation.]” (People v. Robertson (2012) 208 Cal.App.4th 965, 990 (Robertson).)
II. Section 1108, subdivision (a), and CALCRIM No. 1191 are constitutional.
Defendant contends that section 1108, which he says “permits evidence of uncharged sex acts . . . to prove a criminal defendant has a propensity to commit such acts” and upon which CALCRIM No. 1191 is based, “violates fundamental constitutional principles,” i.e., “[the] right to due process and a fair trial” (some capitalization omitted). However, as defendant acknowledges, the California Supreme Court soundly rejected this argument in Falsetta:
“Defendant argues that California’s rule against admitting propensity evidence [citation] is a fundamental principle of justice long recognized as necessary to assure due process. From the standpoint of historical practice, unquestionably the general rule against admitting such evidence is one of long-standing application. . . .
“Yet a long-standing practice does not necessarily reflect a fundamental, unalterable principle embodied in the Constitution. [Citations.] As we have seen, even before the adoption of section 1108, the rule against admitting evidence of the defendant’s other bad acts to prove his present conduct was subject to far-ranging exceptions. [Citations.] Legislative enactment of a further exception applicable in sex offense cases may not necessarily offend fundamental historical principles. [¶] . . . [¶]
“. . . [E]ven if the rule were deemed fundamental from a historical perspective, we would nonetheless uphold section 1108 if it did not unduly ‘offend’ those fundamental due process principles. [Citations.] As will appear, in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.
“As the legislative history indicates, the Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes. [Citation.]
“. . . [T]he case law clearly shows that evidence that [a defendant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses. . . . ‘Such evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.”. . . [Citations.]’ [Citations.]
“What reasons underlie a rule aimed at excluding relevant evidence? We discern three separate reasons supporting the general rule against admission of propensity evidence. The rule of exclusion (1) relieves the defendant of the often unfair burden of defending against both the charged offense and the other uncharged offenses, (2) promotes judicial efficiency by avoiding protected ‘mini-trials’ to determine the truth or falsity of the prior charge, and (3) guards against undue prejudice arising from the admission of the defendant’s other offenses. [Citations.] [¶] . . . [¶]
“(1) Burden on defense – Had section 1108 allowed unrestricted admission of defendant’s other ‘bad acts,’ character, or reputation, his due process argument would be stronger. But on its face, section 1108 is limited to the defendant’s sex offenses, and it applies only when he is charged with committing another sex offense. No far-ranging attacks on the defendant’s character can occur under section 1108. The provision also requires pretrial notice of the offenses sought to be proved, assuring that the defendant will not be surprised or unprepared to rebut the proposed evidence. . . .
“(2) Judicial efficiency – Judicial efficiency theoretically could suffer if the courts permitted trials to be unduly sidetracked while the parties litigated allegations that defendants had committed other sex offenses. We may assume, however, that trial courts will exercise sound discretion under section 352 to preclude inefficient mini-trials of this nature. [¶] . . . [¶]
“(3) Undue prejudice – As for the third factor disfavoring propensity evidence, the possible undue prejudice arising from the admission of defendant’s other offenses, again we believe section 352 provides a safeguard that strongly supports the constitutionality of section 1108. By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶] . . . [¶]
“In summary, we think the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge. . . . ‘[S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under . . . section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause.’ [Citation.]” (Falsetta, supra, 21 Cal.4th at pp. 913-918.)
We are bound by the doctrine of stare decisis to follow this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. There is no reasonable probability that the jury interpreted the trial court’s instructions in the manner asserted by defendant.
Defendant argues there is a reasonable probability the jury construed the trial court’s instructions as allowing conviction on the charged offenses upon a standard of proof less than beyond a reasonable doubt. We disagree.
a. Background.
Prior to closing arguments, the trial court gave the following instructions, inter alia, to the jury:
“[CALCRIM No. 220 (Reasonable Doubt):] The fact that a criminal charge has been filed against . . . defendant is not evidence that the charge is true. You must not be biased against . . . defendant just because he has been arrested, charged with a crime[,] or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
“Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. Proof beyond a reasonable doubt leaves you with an abiding conviction that the evidence is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves . . . defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. [¶] . . . [¶]
“[CALCRIM No. 1191 (Evidence of Uncharged Sex Offense):] The People presented evidence that . . . defen[dant] committed [sex] crime[s] . . . that were not charged in this case. . . . You may consider this evidence only if the People have proved by a preponderance of the evidence that . . . defendant, in fact, committed the uncharged offenses.
“Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude 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 . . . defendant committed the uncharged offense[s], you may, but are not required to, . . . conclude from that evidence that . . . defendant was disposed or inclined to commit sexual offenses, and based on that decision[,] also conclude that . . . defendant was likely to commit, and did commit, lewd and lascivious acts with a child under the age of 14, and sexual penetration by force[,] as charged here. If you conclude that . . . defendant committed the uncharged offenses, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that . . . defendant is guilty of lewd and lascivious acts with a child under the age of 14, or sexual penetration by force. The People must still prove each charge beyond a reasonable doubt.”
b. Analysis.
Although the court issued CALCRIM No. 220, which defendant says “properly inform[ed] the jury on the presumption of innocence and the prosecutor’s burden of proving guilt beyond a reasonable doubt” (fn. omitted), defendant claims that CALCRIM No. 1191 “undermined” that instruction by impressing on jurors the idea that he could be convicted of the charged offenses based on proof by a preponderance of the evidence rather than proof beyond a reasonable doubt. We disagree.
“A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant.” (People v. Cross (2008) 45 Cal.4th 58, 67-68.) Here, the court issued CALCRIM No. 220, which explains the presumption of innocence and requires a conviction of a charged offense to be based on proof beyond a reasonable doubt. (See Falsetta, supra, 21 Cal.4th at p. 920 [“A properly instructed jury will . . . be given the usual instructions regarding the presumption of defendant’s innocence and the prosecutor’s proof burden.”].) The court then issued CALCRIM No. 1191, which specifies that a jury may consider evidence of uncharged sex offenses “only if the People have proved by a preponderance of the evidence that . . . defendant, in fact, committed the uncharged offenses.” “Nothing in [CALCRIM No. 1191] authorize[s] the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination [of] whether defendant committed [the uncharged] sexual offense[s]” (People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford)) and “[a]ny other reading . . . render[s] [CALCRIM No. 220’s] reference to reasonable doubt a nullity” (ibid.). (See People v. Schnabel (2007) 150 Cal.App.4th 83, 87 [“The [1991] version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to . . . CALCRIM No. 1191 . . . .” (fn. omitted)].) Moreover, “[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, “[w]e do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof.” (Reliford, supra, at p. 1016.)
IV. The trial court did not abuse its discretion when it admitted evidence of defendant’s uncharged sex offenses.
Defendant asserts the evidence of defendant’s uncharged sex offenses should have been excluded under section 352.
a. Background.
Pursuant to section 1108, the prosecutor moved in limine to admit the testimonies of D.B., M.S., D.E., R.M., A.R., and M. alleging that defendant committed uncharged sex offenses. Defense counsel objected. At an October 27, 2014, hearing on the motion, counsel presented their arguments:
“[DEFENSE COUNSEL]: [¶] . . . [¶] . . . I think the real key issues that suggest [the testimonies] should not come in are probability of confusion and remoteness of time. We’re talking about one named victim in this case, with five uncharged people. [¶] . . . [M]ost of the evidence is going to be about uncharged conduct. So I think it’s real easy to get confused in this case when we have five uncharged and one charged person.
“I think the remoteness of time also applies. . . . [S]ome of this conduct is from 1967, which is before I was even alive. But I think that’s something the Court could consider as far as when weighing all the factors, if we’re looking at something from 1967, and a lot of it is from the ’70s, mid ’70s.
“And then finally, the charged event actually goes into I think ’92. I may be off on that year. But it’s certainly remote, and the remoteness . . . is really strong in this case because it is so old. [¶] . . . [¶]
“So I think if we consider the confusion, the consumption of time, and the probative value. There’s a little bit of difference[] in the way it was done. And when some of the oldest cases, it’s alleged that there w[ere] pills given. In the newer cases it’s alleged that it’s Kool-Aid.
“So I think that the probative value is somewhat lessened in the sense that there’s different kind of conduct. And although in some of the cases, male victim[s], in one case it’s a female victim.
“There are similarities I can’t deny. Almost all of them include sodomy, with the exception of the female victim. I can’t deny those. But when you add in the age and the real high likelihood of confusion, when we only have one victim, . . . if the Court was to permit all that in, that means most of the trial would be about uncharged conduct because only one victim’s charged. [¶] . . . [¶]
“[PROSECUTOR]: . . . [¶] The named victim, D[.]B., . . . described sexual acts that took place between 1984 and 1991. [¶] . . . [¶] . . . [S]o D[.]B. was between the ages of 10 and 17 during those periods.
“M[.] . . . was sexually assaulted by . . . defendant between 1965 and 1967. That was between the ages of 11 to 13. [¶] Now, that coincides with the same type of age that D[.]B. was, even though it was 20 years earlier, in the ’60s. It still shows that there were age groups that . . . defendant targets.
“M[.]S. will testify that acts were committed upon her between 1982 and 1985, between the ages of 12 and 15. We have a similar age there between M[.] and D[.B.] also.
“We have R[.]M., who will testify . . . defendant sexually assaulted him around the ages of 11 and 12. That’s 1976 to 1977. Again, a similar age group.
“D[.]E. will testify that . . . defendant sexually assaulted him from the ages of 9 to 17, which is very similar to D[.]B. D[.E.] is older than D[.]B., and those acts were committed between 1975 and 1984.
“And then A[.]R. will testify as to two acts that occurred when she was about 11 years old, in 1993. . . . [D]efendant was convicted of child molestation in 1994 in Fresno for that particular case, which shows that his acts have not stopped at all. [¶] . . . [¶]
“. . . [T]he People don’t believe the jury will be confused. The victims are . . . different ages. They have different experiences with . . . defendant. Even though they were similar in some ways, they were all different. They all reacted differently. And they’re all just different people. So the jury will be able to recognize that. They’re not going to be confused. [¶] And the evidence is highly probative . . . to show the propensity issue . . . .”
The court permitted the witnesses to testify:
“It appears to me that there is a course of conduct, which may be linked to the series of the persons who would be proffered as witnesses in this matter. M[.] being in the . . . mid to late ’60s, on to the mid ’70s through ’84, with D[.]E., and late ’70s with R[.]M. And following D[.]E., ending in 1984, that overlaps with M[.S]., 1982 to 1985. And that gets us up to D[.]B., the victim on whom the charges were filed by virtue of the acts as to D[.]B., 1984 to 1991, which covers . . . approximately [the] same time as D[.]E., covers the A[.]R. period, almost. It brings it up to ’91 for D[.]B., and then A[.]R. coming in in 1993.
“So I believe that would be probative in this matter with regard to the propensity. And I don’t find it would be an undue consumption of trial time to bring out this evidence. I don’t find the particular nature of the evidence to be unduly inflammatory, any more so than the acts as alleged, and apparently is similar in kind, if not identical.
“With regard to the probability for confusion, it does not appear to me that having this series of victims over time would be unduly confusing for a jury to consider. And it appears it would be very probative.”
b. Analysis.
Under section 352, “[t]he 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.” “[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.) “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.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
“A challenge to admission of [uncharged] sexual misconduct under . . . sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and will be reversed ‘only if the court’s ruling was “arbitrary, whimsical, or capricious as a matter of law. [Citation.]” [Citation.]’ [Citation.]” (Robertson, supra, 208 Cal.App.4th at p. 991.)
The record establishes that the court conducted a section 352 analysis before admitting these testimonies. It noted the uncharged offenses were “similar in kind, if not identical” to the charged offenses, i.e., sex crimes against children, who were usually drugged and with whom defendant had a preexisting familial relationship, that took place in defendant’s home and/or trucks. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211 [“The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.”]; see also Falsetta, supra, 21 Cal.4th at p. 917 [probative value of “ ‘other crimes’ ” evidence increased by relative similarity between charged and uncharged offenses and independent sources of evidence, i.e., the victims, in each offense].) The court also pointed out that the uncharged offenses were perpetrated over an extended period, i.e., beginning in the mid-1960’s and ending in the early 1990’s, indicating a longstanding inclination to molest children. “This circumstance brings the evidence precisely within the primary purpose behind . . . section 1108.” (People v. Avila (2014) 59 Cal.4th 496, 516.) Furthermore, the similarities between the charged and uncharged sex offenses and the continuous course of sexual misconduct offset any issues of remoteness. (See Robertson, supra, 208 Cal.App.4th at p. 992 [substantial similarities between charged and uncharged offenses balances out temporal remoteness of uncharged offenses]; People v. Harris (1998) 60 Cal.App.4th 727, 739 [remoteness of prior misconduct generally relevant “if and only if the defendant has led a blameless life in the interim”].) And, because the testimonies pertaining to defendant’s uncharged offenses were highly probative on the matter of propensity, the court concluded the introduction of this evidence would not consume an inordinate amount of time. (See Guardianship of Simpson (1998) 67 Cal.App.4th 914, 921 [“The standard is whether the consumption of time is ‘undue.’ ”].) The court observed that these testimonies were “ ‘no stronger and no more inflammatory than the testimony concerning the charged offenses.’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 144.) As for the possibility of confusing the jurors from their main inquiry, the court believed the jurors would be able to distinguish between the charged and uncharged offenses based on chronology and the different victims involved.
V. The trial court did not abuse its discretion when it limited the testimony of a defense witness.
a. Background.
At a midtrial jury instruction conference, the trial court and counsel discussed CALCRIM No. 350 (Character of Defendant). The following colloquy ensued:
“[PROSECUTOR]: I believe . . . we’re going to get [character evidence] out of at least two witnesses, right? [¶] . . . [¶]
“[DEFENSE COUNSEL]: Well . . . at this point I haven’t given the People any statements from character witnesses that I would characterize as character witnesses. But they could speak to character. They’re going to talk about the fact that they were . . . close to [defendant] and they were never touched.
“I don’t think that, in and of itself, is character. But I think [if] they are asked about whether their uncle is the kind of person who would do that, or whether he made them feel that way, I think that would be characterized as character evidence. [¶] . . . [¶]
“[PROSECUTOR]: . . . [I]f the question is, is he the kind of person that does that, if they’re testifying . . . he didn’t do that around them, then they’re saying he doesn’t have the character for doing that, therefore, I can cross-examine on the character aspects. [¶] . . . [¶]
“[DEFENSE COUNSEL]: I disagree with that. I think the character implication is going to be raised. If [the witness is] asked if [defendant is] a good person, if he has morals, . . . if those kinds of questions are asked, I think that opens the door to the character question.
“If we say a very specific question, ‘Did you have an opportunity to be around your uncle?’ And they say yes. And I say, ‘In that time, were you ever touched?’ He says no. I don’t think that automatically opens the door to character evidence.
“THE COURT: [Prosecutor], that makes sense to me. I don’t think that’s a character question. That may be a propensity, and whether that’s admissible or not, that’s a different issue. But I don’t think that constitutes character. [¶] . . . [¶]
“If you’re asking for character representation, ‘What is your uncle’s character for behavior around minors’ is a character question. [¶] . . . [¶] . . . But what did he do, I don’t think, is a character question. [¶] . . . [¶] . . . [P]hrased as [defense counsel] has posited here, I don’t believe that would constitute character evidence. . . . It’s going to depend on how it comes in or doesn’t come in as the case may be. So we’ll see.
“But again, the concept raised by [defense counsel] . . . concerning specific conduct, I don’t believe, would constitute a character question. So if it comes in that way, and only that way, then that wouldn’t be appropriate.”
The court reserved its ruling regarding CALCRIM No. 350.
On the 11th day of trial, before the defense’s case-in-chief, the prosecutor objected to the testimony of defense witness Nicholas Rodriguez:
“I’m objecting to [Rodriguez] testifying because I don’t think he’s relevant. And that’s based on the conversation we had during the . . . jury instruction conference. . . . [W]e had a conversation about [CALCRIM No. 350]. And it seemed to me that the defense wasn’t using [Rodriguez] as a character reference, which is the impression that I had that he was being used for. So if he’s not going to be a character witness, I don’t see how he’s relevant. Because otherwise, his testimony is just, ‘He’s my uncle and he didn’t touch me.’ Well, we can probably find five other boys that . . . defendant didn’t touch too. That’s not relevant.”
Before Rodriguez was called to the stand, the court held a bench conference with counsel.
Rodriguez, defendant’s nephew, testified that he has known defendant “[his] whole life.” Defendant babysat him “at a very young age.” When Rodriguez was in high school, he saw defendant “three, four times a week.” He was never warned by M., his other uncle, to stay away from defendant.
On the 12th day of trial, outside the presence of the jury, defense counsel recounted the bench conference:
“So . . . I provided the People a report from my investigator prior to trial indicating that . . . Rodriguez would testify that he was around [defendant] several times, and that he was never molested by [defendant].
“. . . I was permitted to ask questions, but I was limited to not ask questions specifically about whether or not . . . Rodriguez . . . had been the victim of child sexual abuse by [defendant]. And that ruling was made at the bench outside the presence of the jury.
“And my objection, or my motion, is . . . that [Rodriguez] would be relevant to whether or not he would tend to impeach the [section] 1108 . . . evidence that has been admitted in this case, which is, that there [are] other people that were around [defendant] while growing up and they were all touched, several young men, but now testifying as adults who had been molested by [defendant]. . . .
“. . . I was asking to allow . . . Rodriguez to testify and the Court ruled that that subject matter would not be permitted.”
The court responded:
“. . . I believe that [defense counsel] has accurately stated what he presented, and the Court’s ruling. And it was my thought that that information was not relevant, whether or not an additional third party[,] in this case a witness offered by the defense[,] was or was not somehow molested by [defendant], did not tend to impeach the testimony of other persons who had testified that they were, in fact, molested by [defendant].
“There are separate occasions. The fact that one person is not dealt with by a defendant on one occasion, the same way another person is dealt with on a separate [occasion,] does not tend to prove or disprove that, at least with regard to as would be admitted.
“I admitted the testimony of the persons offered by the People on the uncharged offenses for the reasons that are covered by the statute, and it was permitted for that reason.
“But I did not permit the testimony by [Rodriguez] beyond what was already put on the record, as described by [defense counsel].”
Defendant argues Rodriguez’s testimony was offered as character evidence and the court erroneously ruled it was irrelevant. The People assert defendant did not, at trial, seek to admit Rodriguez’s testimony as character evidence.
b. Analysis.
“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing . . . .” (§ 780.) “The trial court has broad discretion in determining whether to admit impeachment evidence . . . .” (People v. Turner (2017) 13 Cal.App.5th 397, 408.) “Because the court’s discretion to admit or exclude impeachment evidence ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises’ [citation], a reviewing court ordinarily will uphold the trial court’s exercise of discretion [citations].” (People v. Clark (2011) 52 Cal.4th 856, 932.)
We find that the court did not abuse its discretion when it did not allow Rodriguez to testify as to whether defendant molested him in his youth. The record contradicts defendant’s assertion on appeal that Rodriguez was called to the stand to testify about his character. (See ante, at pp. 21-23.) According to defense counsel, Rodriguez’s anticipated response, i.e., “he was never molested by [defendant],” “would tend to impeach” the credibility of D.B., M.S., D.E., R.M., A.R., and M. The court noted that such a response would not tend to disprove the truthfulness of these six witnesses. We agree. It is a dubious proposition that the veracity of six different individuals who accuse a defendant of sexual abuse may be discredited by a seventh person who only attests that he himself was not a victim of molestation. Because Rodriguez’s response would not constitute proper impeachment evidence, the court excluded it as irrelevant. (See § 350 [“No evidence is admissible except relevant evidence.”]; People v. Benavides (2005) 35 Cal.4th 69, 90 [“The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence.”].) We are not compelled to overturn the court’s ruling.
VI. The readback did not violate defendant’s federal constitutional right to be present at all critical stages of trial.
a. Background.
During deliberations, the jury sent a request to the court asking for a readback of D.B.’s testimony. At a proceeding, at which only counsel appeared before the court, defense counsel was asked whether he would “waive the presence of [his] client for purposes of reviewing this communication from the jury.” He answered, “Yes.” Thereafter, the court considered and granted the request.
b. Analysis.
“As the United States Constitution guarantees the accused the right ‘to have the Assistance of Counsel for his [or her] defen[s]e’ [citation], so the California Constitution grants to the accused the rights ‘to have the assistance of counsel’ and ‘to be personally present with counsel’ and requires that those rights ‘shall be construed by the courts of this state in a manner consistent with the Constitution of the United States.’ [Citations.] Likewise, as the United States Constitution proclaims that no state shall ‘deprive any person of life, liberty, or property, without due process of law’ [citation], so the California Constitution declares that no person may ‘be deprived of life, liberty, or property without due process of law.’ [Citations.]” (People v. McCoy (2005) 133 Cal.App.4th 974, 981, citing U.S. Const., 6th & 14th Amends., Cal. Const., art. I, §§ 7, 15, 24.)
“[T]he United States Supreme Court has articulated the accused’s right to the presence of counsel ‘at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected’ [citation], the accused’s right ‘to be present at all [critical] stages of the [criminal prosecution] where his [or her] absence might frustrate the fairness of the proceedings’ [citations], and the accused’s right ‘ “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” ’ [citation]. The high court has never held that a readback is a critical stage of trial. [Citation.]” (People v. McCoy, supra, 133 Cal.App.4th at pp. 981-982.) Furthermore, the California Supreme Court has repeatedly rejected this notion. (See, e.g., People v. Lucas (2014) 60 Cal.4th 153, 299, disapproved in part by People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19; People v. Butler (2009) 46 Cal.4th 847, 865; People v. Cox (2003) 30 Cal.4th 916, 963, disapproved in part by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11 Cal.4th 1068, 1121; People v. Hovey (1988) 44 Cal.3d 543, 585.) We are bound by the doctrine of stare decisis to follow these decisions. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Defendant concedes this point.
DISPOSITION
The judgment is affirmed.


DETJEN, J.
WE CONCUR:



LEVY, Acting P.J.



MEEHAN, J.