Filed 4/18/18 P. v. Bailey CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WAKING ADRIAN BAILEY,

Defendant and Appellant.
H042547
(Santa Clara County
Super. Ct. No. C1234902)
Following a jury trial, defendant Waking Adrian Bailey was convicted of 11 counts of sexual offenses against four minor victims. As to S. Doe, defendant was found guilty of two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) (counts 1 & 2) and three counts of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (counts 3-5). As to F. Doe, defendant was found guilty of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (count 7). As to L. Doe, defendant was found guilty of rape of a victim incapable of giving consent (§ 261, subd. (a)(1)) (count 8). As to C. Doe, defendant was found guilty of four counts of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (counts 11-14). The jury found true the allegations with respect to counts 3, 4, 5, 7, and 11 to 14 that defendant had committed an enumerated offense against more than one victim (§ 667.61, subds. (b), (e); see § 667.61, subd. (c)). The jury found defendant not guilty of count 15, which charged defendant with committing a lewd and lascivious act on a fifth child under 14 years of age (§ 288, subd. (a)). The trial court sentenced defendant to an aggregate term of 150 years to life (10 consecutive 15-years-to-life terms) to be served consecutively to a determinate eight-year term.
Defendant timely appeals. In his opening brief, he argues that the trial court abused its discretion by (1) refusing to admit evidence of the alleged victims’ psychiatric history, (2) admitting evidence of sexual images found on defendant’s cell phone, and (3) admitting the testimony concerning uncharged conduct under Evidence Code sections 1101 and 1108. He also raises a perfunctory challenge to the sufficiency of the evidence to support the four convictions of committing a lewd or lascivious act on C. Doe (§ 288, subd. (a)) (counts 11-14).
With respect to the trial court’s challenged evidentiary rulings, we discern no abuse of discretion. We reject defendant’s sufficiency of the evidence claim.
I
Evidence of the Charged Offenses of which Defendant was Convicted
A. Offenses Occurring at EMQ
1. EMQ
EMQ was a non-profit agency located in the Town of Los Gatos that provided services to families and children. It had a residential program for juveniles between the ages of six and 17 years. It was categorized as a “level 14 group home” for children with very severe behavior issues who needed “monitoring and supervision 24/7.” It could house up to about 20 students. Most of the children had a disability, such as a developmental delay, or required psychiatric care or medication.
EMQ’s buildings were called cottages. The Pennington cottage housed two units known as Pennington East or “Penn East” and Pennington West or “Penn West,” also known as Sequoia.
Mariann Waddel, a social worker at the time of trial, worked in EMQ’s residential program for 10 years, beginning in 2004. Defendant began working at EMQ in approximately June 2007. Waddel worked in the Sequoia/Penn West unit. Defendant worked in the adjoining Penn East unit, but he also covered some overnight shifts at Sequoia/Penn West.
S. Doe (Counts 1-5)
S. Doe was 13 years old when she testified at trial in January 2015. She had lived at EMQ for approximately two years, from the ages of about six to eight and a half years.
During the period when S. Doe lived at EMQ, defendant was a staff member. S. Doe had her own room. It was her recollection at trial that defendant came into her room almost every night and touched her. The touching also occurred in the EMQ van when defendant and she drove to Rite Aid for ice cream.
S. Doe testified that defendant touched her “everywhere.” Defendant twice put his penis in her mouth. His penis touched her “butt cheeks” more than once. More than once defendant’s hands touched her “private parts,” her vaginal area, under her clothing. He kissed her “private area.” Once defendant had used her hand to touch his “private part” over his clothing.
Detective Jamie Field, a police officer with the Los Gatos/Monte Sereno Police Department, had interviewed S. Doe at the child interview center in San Jose on August 4, 2011, when S. Doe was 10 years old. S. Doe disclosed that defendant had engaged in “inappropriate behavior” with her. S. Doe told the detective that defendant sometimes worked overnight at EMQ and that the inappropriate behavior occurred, mainly at night after her bedtime, when she was six, seven, or eight years old. The inappropriate touching began about two months after S. Doe arrived at EMQ and continued until the end of her time there.
S. Doe told Detective Field that defendant kissed her, pulled down his pants and underwear, and did “the stuff” that a grownup does. She disclosed that defendant showed her a video that he found on the Internet and downloaded on his phone. It showed a girl and boy, who were naked, kissing. “[T]he guy had his upfront out.” S. Doe indicated that “white stuff” came out of his “private part” and she would put it “in her mouth.” Defendant showed the video to S. Doe because she “didn’t know how to do it” and defendant wanted her to “[d]o the thing that was on the video.” He instructed her to do what was on the video. S. Doe reported, “And I always said no so he used to say, “ ‘Come on’ and I would say ‘no’ and then he would, you know.”
S. Doe indicated that defendant did it to her backside while her nightgown and underwear were off. Defendant rubbed his penis, “the white stuff” came out, and “he put it on [her] back.” Defendant gave her “candy afterward if [she] did it good.” This happened “[a]ll the time when [she] was there,” almost every day that defendant worked, and that “[h]e wouldn’t let [her] sleep.”
S. Doe told Detective Field that defendant did something once each day. She estimated that “white stuff” came out 100 times. Sometimes defendant got on top of her on her bed while her nightgown was off, and then he got off and gave her candy if she had done “good.” Sometimes defendant put his mouth on her mouth, chest, and vagina.
S. Doe told Detective Field that defendant had taken her to Rite Aid at night. Defendant got candy there. During those outings, defendant did “the same stuff in the car” while it was parked somewhere. She indicated that defendant pulled down his pants and that her underwear was off, and he did “the same stuff” on her “backside.” Defendant wiped the “white stuff” off with a napkin. She explained that defendant “only did [it] in the car ’cause no one could see in the car.”
F. Doe (Count 7)
F. Doe testified at trial in 2015, when she was approximately 17 and a half years old. F. Doe had lived at EMQ from July 15, 2008 to July 1, 2009, and during that period defendant was a staff member. F. Doe was 11 years old when she arrived at EMQ and 12 years old when she left the facility. She was in the Sequoia unit.
One night in 2009, just after F. Doe turned 12 years old, defendant had her perform oral sex on him more than once. Earlier that same day, defendant had taken her on an outing to a mall by herself for her birthday because they “were really close.” While defendant was driving to the mall in a van, defendant asked F. Doe whether she had lost her “v card” and whether her “cherry [had] been popped.” While they were at the mall, F. Doe helped defendant pick out a gift for S.K., an EMQ staff member who worked in F. Doe’s unit and also the mother of defendant’s son, born in 1998, and his daughter, who was 10 years old at the time of trial in 2015. Defendant bought ice cream for F. Doe at the mall. On the way back to EMQ, defendant told F. Doe that she was beautiful and that she “could give him what [S.K.] couldn’t.” While parking back at EMQ, defendant said that he was working on her unit that night and told her to stay awake.
F. Doe testified that while defendant was on duty in her unit that night, he came into her room, woke her up for oral sex, and told her that he just ate sour patch kids candy and that “he would taste sweet and sour.” Defendant had F. Doe orally copulate him by “sucking his penis” with her mouth and this happened more than once. F. Doe said that defendant woke her up, he pulled down his pants, he used his hand to make himself “get hard” and started “jacking off,” and he took her by the hair and made her perform oral sex on him while his hand was on the back of her head. Defendant “came in [her] mouth,” which she explained meant that “his sperm was in her mouth.” She did not spit it out. Defendant ran out of her room when he heard another staff member come into F. Doe’s unit, but he returned later and asked her to again perform oral sex on him, and she did.
At trial, F. Doe claimed that defendant left her room to perform room checks on the other children and returned to her room for oral sex a third time. Afterward, defendant told her “to go brush [her] teeth.”
F. Doe indicated that, before the oral copulation incident, she liked defendant, she felt close to him, and she talked to him whenever she was mad. Afterward, F. Doe hated him because he had abused her trust.
F. Doe admitted at trial that she had been diagnosed with oppositional defiance disorder. She had physically attacked her grandmother and mother when they tried to make her do things that she did not want to do. She admitted threatening to throw acid on a staff member when she did not want to leave her room. F. Doe acknowledged that after the oral copulation incident she had tried to hit S.K. after S.K. remarked that F. Doe was lying, F. Doe had a crush on defendant, and F. Doe thought defendant was cute.
Waddel worked with F. Doe on a one-on-one basis during F. Doe’s entire stay at EMQ. When F. Doe first came to EMQ, she was considered a safety risk because she was “verbally and physically aggressive toward even adults,” particularly female staff members, if she did not want to do as directed. Waddel had been involved in executing “a two-person restraint” on F. Doe. F. Doe was in Waddel’s program at Sequoia/Penn West, and Waddel took F. Doe on outings involving just the two of them. F. Doe complained of stomachaches on a regular basis, “[a]t least every other week, if not every week.”
On about May 19, 2009, F. Doe complained about a stomachache to Waddel. A nurse referral was made, and F. Doe went to see a nurse the next day. The nurse’s notes indicated that F. Doe expressed vague complaints of stomach upset and worry that her period was late and that upon questioning, F. Doe admitted having sexual contact on May 16, 2009.
After the visit to the nurse, F. Doe told Waddel that Brian, a boy at her school (not at EMQ), had visited her and she had given him a “BJ.” Waddel did not believe that a boy had sneaked into F. Doe’s room because it would be very difficult for someone to get in without being detected.
At trial, the parties stipulated that May 16, 2009 was a Saturday. There was evidence that defendant worked a double shift that day, working from 3:00 p.m. to 11:00 p.m. at Pennington East and then working the overnight shift, from 11:00 p.m. on May 16, 2009 to 7:00 a.m. on May 17, 2009 in Sequoia, F. Doe’s unit. In addition, there was evidence establishing that defendant’s coworker on the overnight shift, Lyn, left the unit at some point to run to the drug store and that Lyn had a reputation for falling asleep at night. In addition, there were only three children in F. Doe’s unit that night.
EMQ conducted an internal investigation, and the police were brought in. Defendant was placed on administrative leave for a short time.
On May 28, 2009, Detective Merissa Knuth, who was then an officer with the Los Gatos-Monte Sereno Police Department, interviewed F. Doe at the children’s interview center in San Jose. The detective was investigating an allegation that a 12-year-old female resident of EMQ had orally copulated a male staff member.
F. Doe told Detective Knuth that she made up the story about Brian but that she subsequently revealed that defendant was the person actually involved. F. Doe said that the oral copulation had occurred in her bedroom in the EMQ cottage where she was housed. F. Doe reported to the detective that her favorite staff member, impliedly defendant, had come into her room and asked her for a “BJ” or “blow job” on a recent Saturday night. F. Doe had had a crush on defendant.
F. Doe told Detective Knuth that defendant had been asking her to give him a “BJ” for a while, and she felt pressured. She explained that defendant usually had worked in Pennington East, but he worked overnight in Pennington West on Friday and Saturday nights. F. Doe disclosed that on the night in question, defendant had shaken her awake at approximately 11:00 p.m. or 12:00 a.m. and asked, “Are you ready?” There were only three children present in that unit that night. Defendant told her that the other staff member was gone. Defendant told F. Doe that “stuff would come out” of his penis and that it “would be sweet ’cause he had a lot of candy.”
During the interview with Detective Knuth, F. Doe described defendant pulling down his pants and underwear, putting his penis in her mouth, holding her head with his hand, and “go[ing] back and forth.” Defendant was standing up, and F. Doe was sitting on her bed. She told the detective that white “stuff” came out of defendant’s penis into her mouth and that she swallowed all of it. Defendant said, “It feels good and you’re my fan.”
F. Doe told Detective Knuth that defendant returned to her room later that night, closed the door, woke her up again, and asked “for more.” Defendant pulled down his pants again, and they “did it again.” F. Doe said that she “pinky sweared” that she would not tell after the second time. F. Doe told the detective that the next morning she felt “scared and sad” because defendant was her “favorite staff” member and she “didn’t want him to get fired if [she] told.”
F. Doe told Detective Knuth that she went to see the nurse because her “stomach was hurting really bad” and that she “told them what happened ’cause [she] was kind of scared.” F. Doe disclosed that she had told the nurse that she might be pregnant because she had swallowed the ejaculate.
The police case was closed because F. Doe was not believed. Defendant returned to work at EMQ.
In 2011, Detective Field’s investigation into the alleged offenses against S. Doe led her to conduct a further investigation into the F. Doe case.
B. Other Offenses
L. Doe (Count 8)
At trial, Ellen Winters, a licensed clinical social worker, testified that she worked at the San Jose campus of AchieveKids, beginning in 2002. AchieveKids was a year round, nonpublic school for special education students, including students with developmental delays or serious behavioral or emotional problems. Winters worked with L. Doe at AchieveKids from 2002 until L. Doe left the school when she was 18 years old. The school had vans that were used for outings and transportation, and the staff had access to them.
When L. Doe first came to the school, she had some problems controlling her temper. L. Doe had been diagnosed with oppositional defiant disorder, and reactive attachment disorder was a possible diagnosis. L. Doe was in an adaptive learning program focused on daily living skills at AchieveKids, and it was likely that L. Doe would always need supervision. When she left the AchieveKids school at 18 years of age, L. Doe had “kindergarten or pre-kindergarten math and letter recognition skills.” She was not able to read a children’s book.
Dr. Edith Bennett, a school and clinical psychologist, testified as an expert in evaluating children for special education services. According to tests conducted, L. Doe suffered from severe to moderate intellectual disability. As compared to an average person, L. Doe was “extremely disabled in terms of her reasoning and judgment.” She had poor short-term memory.
While L. Doe was living with her aunt W. in East Palo Alto and attending AchieveKids, defendant asked W. for permission to take L. Doe to a football game in which his son was playing, and W. allowed the outing. W. had heard from L. Doe that defendant had a son and a daughter. According to W., L. Doe “had a big crush on Waking.”
On that occasion, defendant picked up L. Doe from W.’s home. L. Doe was with defendant from about 2:00 or 3:00 p.m. until 8:00 or 9:00 p.m.
L. Doe subsequently told her mother about the outing. She disclosed that she went with someone to a football game and to a park and that she had some candy. Her mother asked L. Doe what she was doing at a park. L. Doe explained that they stopped at the park, that she was asked to get in the back seat and pull down her pants. L. Doe told her mother that “they had sex in her vagina and in her booty hole.” When her mother inquired as to who had asked her to do that, L. Doe replied, “Waking.”
When W. spoke to L. Doe about it, L. Doe said that she had gotten into the back of a truck, that defendant had asked her to pull down her pants, and that defendant had stuck his “wee-wee” “in her ta-ta.” W. did not believe L. Doe, and W. told L. Doe that she should not say such things “because she could get someone in trouble.” At trial, W. identified defendant in court.
“[N]ear the end of August” in 2011, the AchieveKids students returned to school after a three-week summer vacation. L. Doe turned 18 years old in late August 2011. When AchieveKids School was back in session after the break, defendant mentioned to Winters that over break he had taken L. Doe to a football game with his children to celebrate L. Doe’s 18th birthday.
On September 11, 2011, after the fall school session had started, W. left voice messages with the school principal and with Winters expressing concern that L. Doe was saying that during the vacation she had had sex with defendant. After receiving the call from W., Winters talked to L. Doe.
When asked, L. Doe told Winters that defendant had picked her up in his van, he had bought her a candy bar or Kit-Kat, he had parked in or near a park, he had asked her get in the van’s back seat and to take off her clothing, he had gotten into the back seat as well, he had asked her to roll over on her stomach, and they had “had sex.” Winters asked L. Doe to explain using dolls and blocks. L. Doe clearly pointed to her genital area and described a sexual act involving him taking “his whatever out” and “rubbing it against her bottom.” L. Doe was “very upset and crying” because defendant had said he would be her boyfriend, but he was ignoring her.
Diana Emerson, a forensic nurse practitioner, testified as an expert in SART (Sexual Assault Response Team) exams at trial. She saw L. Doe on September 13, 2011 at the Keller Center, which specializes in victims of physical and sexual abuse, in the San Mateo Medical Center. L. Doe told Emerson that she had had sex with her teacher, whose name was Waking, on August 28, 2011. She said they went to a football game. She said that “[h]e put his dick in her front part and her back part” and pointed to her vagina and “anal area.”
L. Doe was interviewed by Inspector Rickert on March 1, 2012. During the interview, L. Doe acknowledged that she had gone to AchieveKids. L. Doe confirmed that she had told Winters what had happened with “[her] and Waking.”
L. Doe told Inspector Rickert that defendant had picked her up at her aunt W.’s house. L. Doe reported that defendant had put “a dick” in her “butt” and that it happened in the back seat of defendant’s black van. L. Doe indicated that at some point defendant and she had gone to a park. At some point during this outing, they were at his son’s football game and watched his son play. L. Doe indicated that her aunt had given money to defendant, and defendant had bought her a Kit-Kat or M & M’s candy. L. Doe indicated that she had spent time with defendant’s family.
Inspector Rickert asked L. Doe to circle where defendant had touched her on a drawing of a girl. L. Doe indicated that defendant touched her “butt” and her “private.” On another drawing, L. Doe circled the part of defendant’s body that had touched her “private.” L. Doe disclosed that defendant asked her “to do it with him” and that he said, “Let’s do it, have sex.” She said that defendant put his “dick” inside her “butt” and inside her “private.” It was okay with L. Doe when it happened. She said that defendant told her, “Don’t tell nobody.”
At trial, L. Doe testified that she went to a football game with Waking, who was a teacher. L. Doe identified Waking in a picture and indicated that he had been a boyfriend. On a drawing of a naked girl, L. Doe identified the breasts, the “private,” which she circled, and the “butt.” On a drawing of a naked boy, L. Doe identified the “wiener” and the “butt.” While testifying, L. Doe indicated that she was shy because her mother was there, and the court asked her mother to step outside. L. Doe indicated that she had seen “Waking’s wiener,” or penis, and that his penis had touched her body. She confirmed that defendant’s “wiener” went into her “butt” and into her “private.” She indicated that it happened in the back seat of a car.
Defendant was ultimately terminated from AchieveKids.
C. Doe (Counts 11 to 14)
In June 2012, when C. Doe was 25 years old, she met with Inspector Rickert. This meeting occurred because C. Doe contacted the District Attorney’s Office after learning that defendant had been arrested for “sexually assaulting” girls. C. Doe, who was born in January 1987, was 28 years old and married when she testified at trial in 2015.
In 1997, when C. Doe was about 10 and a half years old, her mother, her little brother, and she moved into her aunt’s house on Cathay Drive. Beforehand, they had been living next door in the home of C. Doe’s grandmother.
J., who was C. Doe’s cousin, knew defendant from San Jose State University where they both attended college; they played football together. C. Doe met defendant when she was approximately 10 and a half years old. It was C. Doe’s recollection that defendant moved into her aunt’s home on Cathay Drive and defendant shared a room with J.
An incident with defendant occurred in J.’s room on Cathay Drive during the summer when C. Doe was 10 and a half years old. C. Doe was wearing a white T-shirt and shorts after swimming in a blowup pool in her grandmother’s backyard. When C. Doe returned to her aunt’s house to get some dry clothes, defendant told her that he could see her breasts underneath her shirt. After C. Doe changed into a new shirt, defendant asked her to come into J.’s room. Defendant told C. Doe that she had nice breasts and he wanted to see them. Defendant showed his penis to her. She became “freaked out,” ran into a closet in the room, started crying, and covered her face.
Defendant put his penis away and followed C. Doe to the closet, and he sought to console her. C. Doe came out of the closet, and defendant told her that he wanted to teach her something. Defendant put his penis in C. Doe’s mouth, he told her to “taste it” and “to move his penis in and out” of her mouth, and she did as she was told. Defendant rubbed her breasts with his hands over her shirt. He did not ejaculate. After the incident, C. Doe felt “very confused” and did not tell anybody what had happened.
When C. Doe was 11 years old, she orally copulated defendant multiple times. Defendant touched her breasts under her shirt, skin to skin, more than once while she was 11 years old.
While C. Doe was 12 years old, defendant continued to have her orally copulate him on a regular basis. It happened many times and in different parts of the house. Over multiple occasions of orally copulating defendant, defendant taught C. Doe to use her tongue and “to put [her] hand around his penis and move [her] hand up and down his penis as [she was] licking it.” Defendant told her that “what felt good to him was to ejaculate in [her]mouth.” He wanted to ejaculate in her mouth, and he wanted her to swallow it. C. Doe accepted that orally copulating defendant was going to happen regularly.
When C. Doe was 12 years old, defendant touched her breasts over her clothing and under her clothing more than once. Defendant sometimes rubbed his penis across her breasts, skin to skin. C. Doe felt powerless to make defendant stop touching her breasts. Sometimes he ejaculated on her breasts. At some point in time, defendant told C. Doe that the birthmark on her left breast gave her personality and made that breast special.
When C. Doe was 12 years old, defendant and she were in the bathroom of her aunt’s house and he pulled out a tube and said that he wanted to show her something. Defendant put a substance, which in hindsight C. Doe knew was “lube,” on his penis, he had her pull down her pants and bend over the bathtub, and he attempted to have anal sex with her. His penis went “slightly” into her anus, and it was “quite painful” for her. She told him that it hurt, and he stopped; he did not ejaculate. Defendant told her to try not to “walk funny.” C. Doe was afraid to tell anybody what had happened because defendant already had told her that she would get in trouble and that nobody would believe her.
On another occasion in the bathroom while C. Doe was 12 years old, defendant put his penis into her anus “more than slightly.” That time, defendant also used lubricant. C. Doe described the experience as “uncomfortable” but not “as painful as the first time.” Defendant did not ejaculate. C. Doe put his penis in her anus many times when she was 12 years old. He ejaculated on her “butt” more than once.
When C. Doe was approximately 12 and a half or 13 years old, C. Doe’s family moved from her aunt’s home into a shelter after her mother and her aunt had a falling out. By that time, oral sex and anal sex with defendant had become “a regular thing” and those things happened “a couple of times a week.”
C. Doe’s aunt moved from Cathay Drive to an apartment, and for a brief period C. Doe, who was then in eighth grade and still living in the shelter, took the bus from her middle school to her aunt’s apartment after school, and her mother picked her up after work. Defendant was living in that apartment, and defendant was sometimes there while C. Doe was there. On one occasion, C. Doe gave defendant oral sex in an upstairs bathroom of her aunt’s apartment while her cousin J. was downstairs.
After living in the shelter, C. Doe’s family moved into an apartment in Campbell. C. Doe and defendant reconnected by cell phone when she was 14 years old and living in Campbell. At trial, C. Doe described numerous sexual acts in which she engaged with defendant when she was 14 and older while she was in high school.
When interviewed by Inspector Rickert, C. Doe estimated that, from the time she was 10 and a half years old until “before [her] 14th birthday,” she had given defendant a “blow job” hundreds of times and defendant had had anal sex with her approximately 50 times.
II
Discussion
A. Evidence of Alleged Victims’ Psychiatric History
1. Background
One of defendant’s motions in limine requested a court ruling that the psychiatric evaluations of the alleged victims were admissible after the enactment of “section 1112 and Proposition 8.”
The trial court explained that in general, evidence of specific lies could come in, but a psychiatric report stating that a child tended to be a liar could not come in because it was possible that such statement was based on third-party hearsay statements. The court indicated that not every diagnosed disorder made it more likely than not that someone was a liar, and, as an example, the court distinguished ADHD or impulse control behavioral problems from an attachment disorder or a psychosis. It made specific rulings as to each victim.
As to S. Doe, the trial court ruled that prior sexual abuse in general and her mental health condition in general were inadmissible but that her attachment disorder diagnosis was admissible. The court ruled that reports that S. Doe was highly sexualized or sexually provocative with her foster dad were inadmissible, but it said that the evidence could be brought to the court’s attention again at trial. It indicated that it would allow evidence showing that S. Doe had knowledge of sexual acts before defendant’s alleged conduct, evidence showing her specific lies or “a character for lying,” and evidence showing she was unable “to differentiate between reality and fantasy.”
As to F. Doe, the trial court ruled that evidence that F. Doe had mentally abused her grandmother and mother and that F. Doe was generally manipulative was not relevant or admissible. The court determined that reports from a counselor that F. Doe had a tendency to lie, which could be based on thirdhand information, were not admissible. The court indicated that evidence that F. Doe could be physically abusive to others was partly relevant, and impliedly admissible, insofar as it showed that she could physically fight off someone who asked her to do something that she did not want to do. It ruled that her mental health condition was inadmissible except to the extent that it showed an “inability to distinguish reality from fantasy.” It ruled that evidence that F. Doe tended to complain about stomachaches was admissible.
As to L. Doe, the trial court ruled that evidence that she was removed from her biological mother’s care was inadmissible on the issue of credibility. It determined that evidence that L. Doe was developmentally disabled was admissible. It also indicated that it would allow evidence that L. Doe displayed her emotions, including when she was upset or excited about something. The trial court also found that general evidence that L. Doe was “a follower” was not “indicative” of whether she had been sexually assaulted, but that if the defense laid a foundation at trial, it might be relevant and admissible in a particular context.
2. Analysis
Without any citations to the record on appeal, defendant argues that the trial court abused its discretion by disallowing the presentation of the psychiatric evidence. He asserts that each of the alleged victims suffered from psychiatric disorders and that those disorders may have made them “more likely to fabricate allegations” or to have been “manipulated into fabricating allegations.” He also claims, again without any citation to the record, that most of the alleged victims “were not sexually naïve and some had active sexual fantasies, including relationships with staff and celebrities.” Defendant argues that, “[u]nder these circumstances, and considering that [his] lifelong freedom was at stake, admission of the psychiatric history of the victims should have been permitted.”
Defendant points out that section 1112 did not “prohibit the court from admitting existing psychiatric evidence.” But the mere fact that psychiatric evidence was not categorically inadmissible does not mean that specific evidence was necessarily admissible.
On appeal, defendant has not demonstrated, by citation to specific legal authority and the record, that any particular psychiatric/mental health evidence, ruled inadmissible at the hearing on the motions in limine, was both relevant and admissible under applicable law. (See e.g., Evid. Code, §§ 210, 350, 352, 1200.) His abuse of discretion claims are perfunctory and conclusory.
“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).) “Each brief must: . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and [¶] (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. . . .” (Cal. Rules of Court, rule 8.204(a)(1).) We treat his claim that the trial court abused its discretion in ruling on his motion in limine as to the admissibility of psychiatric/mental health evidence as waived.
B. Sexual/Pornographic Materials Found on Defendant’s Cell Phone
1. Background
A defense motion in limine requested a ruling that “sexual paraphernalia” that was not an instrumentality of any alleged crime was inadmissible because such evidence was irrelevant, improper character evidence, and inadmissible under Evidence Code section 352 and the First Amendment. It was asserted that defendant’s cell phone that was confiscated by police officers in 2012 was not the cell phone that defendant had when he allegedly showed downloaded pornography to S. Doe. It was claimed that “the videos and images” on the confiscated phone were “of him with his partners” and that they “were created in 2011, after [S. Doe] was no longer at EMQ.”
At the hearing on the motions in limine, defense counsel emphasized that the images from defendant’s phone were taken years after S. Doe claimed to have been shown a sexual video. Nevertheless, the court ruled that defendant’s recorded video images of him being orally copulated by adult females were admissible because they tended to corroborate S. Doe’s account of defendant showing her images of oral sex on his cell phone.
As part of the defense case, S.K. was called to testify. Outside the jury’s presence, defense counsel advised the court that S.K. would be testifying that defendant’s penis was “larger than average” and that counsel planned to use penis “replicas” to demonstrate the size of defendant’s penis to impeach alleged victims’ claims that defendant engaged in anal or vaginal sex with them. It was suggested that such evidence was relevant because at least two of the alleged victims each claimed that defendant “inserted his penis into [her] anus, and then [each of them] just walk[ed] out like nothing happened right after” and displayed no pain. The court permitted such evidence.
S.K. testified that she had seen defendant’s penis, and then she was asked whether there was anything unusual about his penis. S.K. answered, “It’s large in size.” Using the replicas, defense counsel asked S.K. to select the one similar in size to defendant’s penis, which she did.
At trial, defendant testified in his own behalf. During a break in his testimony, and out of the presence of the jurors, the parties and the court revisited the issue of the relevance of the sexual images found on defendant’s cell phone. Defense counsel maintained that they were irrelevant and suggested that the pornography found on defendant’s phone might have been pop-up ads rather than downloads. The prosecutor responded that the evidence of the sexual material found on defendant’s cell phone was relevant because “it prove[d that defendant] ha[d] an interest in those [sexual] topics,” including oral copulation, and that defendant might have used similar material to encourage someone to engage in a sexual act.
The trial court ruled that under Evidence Code section 352, the probative value of the proffered sexual materials found on defendant’s cell phone, which included two videos of adult women orally copulating defendant, substantially outweighed the danger of undue prejudice. The court found that among other things, the videos were relevant to refute defense evidence that defendant’s “penis was too large to commit acts of sex with children and adults without giv[ing] them pain.” It also found that the sexual material on defendant’s cell phone was relevant because it tended to corroborate the testimony of an alleged victim who had indicated that “she was enticed to engage in sex with the defendant when the defendant showed her sex videos on his cell phone and said, ‘I want you to do to me what you’re looking at in this cell phone video[.]’ ” In addition, the court noted there was evidence that defendant might have talked to a victim about the taste of semen and the proffered evidence was relevant. It also found that the evidence was relevant to rebut defendant’s claim that he was “nothing but a caring adult figure for troubled children.”
At trial, two videos of adult women orally copulating defendant, which had been found on defendant’s cell phone, and several still photos taken from those videos were admitted into evidence. Defendant acknowledged that he watched oral copulation videos. Defendant admitted that he had recorded the videos of him being orally copulated. One of the videos had been recorded in his car. An exhibit (exhibit 51), which displayed what appears to be a printout of screenshots of sexual or pornographic material, was admitted into evidence.
When shown the People’s exhibit 51 and asked to familiarize himself with it, defendant responded that he was already familiar with it. He described the exhibit as “[j]ust documents from [his] cell phone, from Facebook, porn sites, questions about digesting of semen, more porn sites, etc[.]” He acknowledged that material on his cell phone included “adult images of pornographic material” and images showing “various types of pornographic sexual acts.” He indicated that he had “grabbed” the question and answer about the digestibility of semen from someone else’s Facebook posting. Defendant did not suggest that any of the images was a pop-up ad.
Defendant acknowledged that he transferred all the data from his cell phone that was confiscated by police when he was arrested in 2011 to a second cell phone, which was also taken from him when he was arrested a second time. Defendant acknowledged that he went on “porn sites” with his second cell phone.
In closing argument, defense counsel attacked the credibility of the alleged victims based on the size of defendant’s penis, saying in part, “And I think in viewing the video, you will see that he has a larger penis. And for these kids to claim that all these acts are happening, and no one has any pain, no one had noticed any walking funny, any parent, nothing, it doesn’t make sense.”
2. Analysis
Defendant maintains that the trial court abused its discretion under Evidence Code section 352 in admitting the evidence of the pornographic images found on his cell phone. Defendant argues that the videos of oral copulation on his cell phone were placed there years after the alleged offense involving S. Doe and after he was no longer working at EMQ and that there was no evidence that the images found on his cell phone had been “shown to any of the complaining witnesses.” He also claims that the images “could have been pop-ups instead of downloads,” and, without any citation to the appellate record, he states that “the defense complained that it did not have notice that the images were going to be offered in evidence at trial and that it therefore did not have an opportunity to retain an expert to determine [whether] the images were downloads or popups.” In his opening brief, defendant attacks the prosecution’s relevance argument, stating that the prosecution offered the “photos to prove that [he] has an interest in oral sex.” Defendant asserts that many men have an interest in oral sex and that “it is not illegal to have adult porn on one’s cell phone.”
Defendant fails to address the trial court’s reasoning in ruling that the evidence was admissible under Evidence Code section 352. The defense’s argument that some of the images might be pop-up ads is entirely speculative, and the argument that it lacked notice is not supported by citations to legal authority or the appellate record. In the absence of any legal argument or citation to legal authorities or the record, we deem his claims—that the court abused its discretion in admitting the images found on his cell phone and that defendant was denied notice to which he was entitled—waived. (See Stanley, supra, 10 Cal.4th at p. 793; Cal. Rules of Court, rule 8.204(a)(1).)
Moreover, defendant has not demonstrated any abuse of discretion. “Under Evidence Code section 210, relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ A trial court has ‘considerable discretion’ in determining the relevance of evidence. (People v. Williams (2008) 43 Cal.4th 584, 634.) Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An appellate court reviews a court’s rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court’s ruling on such matters unless it is shown ‘ “the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ [Citation.]” (People v. Merriman (2014) 60 Cal.4th 1, 74.)
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).) Although some of the sexual/pornographic materials found on defendant’s cell phone were explicit, they were less inflammatory than the charged offenses and not unduly prejudicial within the meaning of Evidence Code section 352.
The abuse of discretion standard of review is deferential. (People v. Williams (1998) 17 Cal.4th 148, 162.) “[I]t asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Ibid.) “A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
The self-recorded videos of defendant being orally copulated by adult women were relevant to assess the credibility of the defense evidence that defendant’s penis was unusually large. Defendant has cited no legal authority to support his assertion that expert testimony, rather than visual evidence of defendant’s penis, was required to rebut such claim. Evidence that defendant’s cell phone contained sexual/pornographic materials subsequent to the commission of the alleged offenses was admissible because it tended to corroborate S. Doe’s report that defendant had showed her sexual videos downloaded to his cell phone.
The trial court acted within its discretion in ruling that the sexual/pornographic materials found on defendant’s cell phone were admissible in evidence.
C. Evidence Code Sections 1108 and 1101
Defendant asserts that the trial court “committed prejudicial error by admitting the testimony of [A.] Doe” concerning uncharged offenses pursuant to Evidence Code sections 1101 and 1108. He argues that the evidence is “highly inflammatory” since the testimony essentially shows that he committed “statutory rape.”
1. Background
In a motion in limine, the defense argued that the admission of evidence of uncharged sexual offenses pursuant to Evidence Code section 1108 would violate Evidence Code section 352. The trial court made clear that it found the evidence probative and that it had conducted an analysis under Evidence Code section 352, which impliedly did not require the evidence to be excluded. The court indicated that the evidence of defendant’s sexual relationship with A. Doe was also relevant because it showed that defendant could engage in sexual activities at EMQ without a coworker being aware of them. The trial court ruled that A. Doe’s testimony regarding her sexual relationship with defendant, which began when she was still a minor and resumed when she was an adult and allegedly involved sexual interactions at EMQ when defendant was employed there, was admissible under Evidence Code sections 1101 and 1108.
A. Doe, who was 29 years old at the time of trial in 2015, testified that she met defendant at San Jose City College the summer after her sophomore year in high school, when she was 16 years old. A. Doe was attending a “middle college” program at the city college. She testified that when defendant asked her age, she lied that she “was 17 going on 18.” Defendant and she had sexual intercourse and oral sex that summer, and those acts sometimes occurred in defendant’s apartment, a friend’s house, or in his car. While A. Doe was 16 years old, defendant put his mouth on her genitals more than once, and she put her mouth on his genitals more than once. Their sexual relationship continued when she was actually 17 years old.
A. Doe testified that when she was 18 years old, defendant and she “grew apart.” Defendant and she did not talk for some time, but when A. Doe was approximately 23 years old, they began talking and having a sexual relationship again. A. Doe stated that she visited defendant at EMQ, where he was working. Sometimes, they talked in his car at EMQ. They had both oral sex and sexual intercourse at EMQ. She testified that their sexual activities at EMQ occurred mostly at night, usually in defendant’s car. She recalled that once, “really late” or “past midnight,” defendant sneaked her into EMQ. On that occasion, A. Doe was drunk. They had sexual intercourse and oral sex inside an EMQ cottage in an observation area.
On redirect examination, A. Doe acknowledged that it was her voice on an audio recording of a 2012 interview in which she was asked how many times she had sex in the EMQ “cottage” and responded, “Maybe, like, three or four times.” At trial, A. Doe testified that she still cared about defendant. The parties also stipulated that A. Doe committed an offense of using a false ID in 2010.
A. Doe testified that when she was about 23 years old, defendant and she lived together for a period of less than a year. Defendant testified that he first met A. Doe at San Jose City College in June or July of 2002 and that in 2008 or 2009, A. Doe and he lived together for approximately eight to 10 months while he was working at EMQ. A. Doe indicated that their relationship ended because of defendant’s lies concerning his two children and their mother, S.K.
2. Analysis
Focusing on the evidence of “statutory rape,” defendant contends that the trial court committed prejudicial error in admitting A. Doe’s testimony pursuant to Evidence Code sections 1108 and 1101.
Subdivision (a) of Evidence Code section 1108 provides that, “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Italics added.) “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.” (People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta).) In exercising its discretion under Evidence Code section 1108, “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.]” (Falsetta, supra, at p. 917.)
There was no evidence that any of the consensual sexual activities between defendant and A. Doe when they were both adults amounted to a “sexual offense” within the meaning of Evidence Code section 1108. (See Evid. Code, § 1108, subd. (d)(1).) But unlawful sexual intercourse with a person under 18 years of age (§ 261.5) and unlawful oral copulation with a person under 18 years of age (§ 288a, subd. (b)(1)) are offenses that qualify as sexual offenses under Evidence Code section 1108, subdivision (d)(1)(A).
“When a defendant is accused of a sex offense, Evidence Code section 1108 permits the court to admit evidence of the defendant’s commission of other sex offenses, thus allowing the jury to learn of the defendant’s possible disposition to commit sex crimes. [Citation.] The court has discretion under Evidence Code section 352 to exclude the evidence if it is unduly prejudicial. [Citation.] The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant’s disposition to commit the charged sex offense or other relevant matters. [Citation.] The court’s ruling admitting the evidence is reviewed for abuse of discretion. [Citation.]” (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova).)
The dissimilarity of the uncharged offense to the charged offense does not compel exclusion of the evidence. (Cordova, supra, 62 Cal.4th at p. 133.) “ ‘ “[T]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” ’ [Citation.]” (Ibid.)
As the trial court suggested, a 21-year-old male having sexual intercourse with a 16-year-old female is “not terribly uncommon in today’s society,” although it remains a crime. On appeal, defendant has not convinced us that the evidence of his sexual activities with A. Doe before she was an adult was “highly inflammatory” because it showed “statutory rape.” The evidence of defendant’s commission of unlawful sexual intercourse (§ 261.5) or unlawful oral copulation (§ 288a, subd. (b)(1)) with A. Doe before she turned 18 was certainly not as inflammatory as the offenses with which he was charged, and the evidence was not likely to evoke the kind of emotional bias against him that is the concern of Evidence Code section 352. (See Karis, supra, 46 Cal.3d at p. 638.) Defendant has failed to show that the trial court abused its discretion by finding the evidence of defendant’s unlawful sexual conduct with A. Doe was not inadmissible under Evidence Code section 352 and admitting the evidence under Evidence Code section 1108.
Defendant also argues that the admission of the evidence of the uncharged conduct of “statutory rape” under Evidence Code section 1101 was “problematic” because such conduct was required to be proved only by a preponderance of the evidence, which was “particularly unfair” because he could be found “guilty” of its commission “without the benefit of a criminal trial, criminal safeguarding procedures, or [the] proof beyon[d] a reasonable doubt standard.” Even assuming this argument was preserved for appeal although defendant has not shown that he raised those objections below (cf. People v. Doolin (2009) 45 Cal.4th 390, 437), defendant has failed to establish that the evidence was inadmissible under Evidence Code section 1101. Since we have determined that the trial court acted within its discretion in finding the evidence of uncharged offenses was not inadmissible under Evidence Code section 352, the evidence was “not made inadmissible by Section 1101.” (Evid. Code, § 1108, subd. (a).) Moreover, the California Supreme Court has stated that “[t]he preponderance of the evidence standard [applicable to proof of uncharged offenses] adequately protects defendants.” (People v. Carpenter (1997) 15 Cal.4th 312, 382, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1188-1195 and superseded by statute on another ground as explained in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; see People v. Virgil (2011) 51 Cal.4th 1210, 1259 [refusing to reconsider the standard of proof].)
D. Sufficiency of the Evidence
The third amended and consolidated information alleged that each of counts 11 through 14 occurred “[o]n or about and between” a one-year period corresponding to C. Doe’s ages of 10, 11, 12, and 13, respectively. Without any citation to the record or governing legal authority, defendant contends that the evidence was inadequate to support the convictions on counts 11 to 14. Defendant specifically argues that C. Doe’s testimony was unbelievable because “[s]he testified that she lived with [him] when she was young but she did not . . . .” He also reasserts that “all of the complaining witnesses are known to have serious behavioral and mental issues.”
Defendant failed to state his insufficient-evidence claim “under a separate heading or subheading summarizing the point” or support it by argument, citation of authority, and specific citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) As stated, an appellate court may deem a substantiality of the evidence argument waived “when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. [Citation.]” (Stanley, supra, 10 Cal.4th at p. 793.) Consequently, we treat defendant’s perfunctory general challenge to the sufficiency of the evidence as waived.
In any case, defendant’s specific contentions are meritless. “[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181; see Evid. Code, § 411.) In addition, “[i]t is well settled that the trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted. [Citations.] . . . ‘[T]he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. [Citations.]’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.)
‘ “To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” ’ [Citation.]” (People v. Maciel (2013) 57 Cal.4th 482, 519, italics added.)
DISPOSITION
The judgment is affirmed.




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ELIA, ACTING P. J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



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MIHARA, J.












People v. Bailey
H042547