Filed 2/20/18 P. v. Caldon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO




THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES JOSEPH CALDON,

Defendant and Appellant.


E067600

(Super.Ct.No. FVI1403010)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Charles Joseph Caldon, of (1) oral copulation or sexual penetration with a child 10 years of age or younger and (2) sexual intercourse or sodomy with a child 10 years of age or younger. (Pen. Code, § 288.7, subds. (a), (b).) The court sentenced him to a total of 40 years to life in state prison. Defendant is the maternal grandfather of the victim, A.P. He argues the trial court erred in admitting evidence of uncharged sexual offenses against A.P.’s mother under Evidence Code section 1108. We affirm.
II. FACTS
A. Prosecution’s Case
H. is A.P.’s mother and defendant’s daughter. A.P. has an adult sister. Around November or December 2007, H., A.P., and her sister moved into defendant’s home in Barstow. Defendant’s wife—that is, A.P.’s grandmother—also lived in the home. A.P. and her family lived with defendant until April 2011. A.P.’s uncle and his family also lived in the house for a time while A.P. lived there.
A.P. was ages two through six during the time she lived in defendant’s house. Defendant frequently watched her alone when she lived there. After she and her family moved out, defendant would frequently pick her up from school on Wednesdays. He would also frequently watch her on Saturdays at his house. She slept over on Friday nights, and her grandmother would sleep late on Saturday mornings while defendant was watching her.
At the time of trial in 2016, A.P. was 11 years old. She testified that, around the time she started kindergarten, when she was five, defendant began exposing himself to her. He would walk into the living room and open up his bathrobe so that she could see his penis. This occurred every Saturday morning, when her grandmother and sister were still sleeping, and her mother was out. After approximately one month, he started taking his bathrobe off completely and having her undress too. He would then rub her genitalia and tell her to rub his penis, which she did. After approximately one year of the touching, he progressed to penetrating her anus with his penis. The anal intercourse first occurred in his car when they drove out to the desert near Barstow. He did this every Wednesday when he picked her up from school, and almost every Saturday morning when her grandma was sleeping until noon or so.
When she was eight years old, defendant began making her orally copulate him. Again, the first time occurred in the desert. He told her she had to suck on his penis for at least 10 seconds. She refused, but he said she had to listen to him because he was her grandfather, and so she complied. From then on, he made her orally copulate him almost every time he got her alone on Wednesdays and Saturdays. He took her on a trip to Four Corners, just the two of them, and had her do it. He also began using a type of liquid candy. He “shook his penis so that a liquid came out of it,” then told her to put the candy on his penis and made her suck it off. He also orally copulated her a few times.
Defendant also used “buzzy things” that he called “sex toys” with A.P., starting when she was around eight. She recalled three different ones. A two-inch silver one vibrated when he turned it on; he would rub her genitalia with this. He used a longer six-inch one that also vibrated to penetrate her anus. He had a third one that looked like a shower head, and he would also rub this one on her genitalia.
Around age five, A.P. began having frequent temper tantrums or “massive fits” in which she would throw herself on the floor, pull at her hair, beat her head on the floor or wall, and yell and scream. Her school sent her home multiple times for her behavior. After only a month or two of kindergarten, the school recommended that H. return her to preschool. A.P. was diagnosed with attention deficit hyperactivity disorder and given medication. The medication did not seem to work and these tantrums continued until the time A.P. disclosed the sexual abuse by defendant.
A.P.’s first disclosure occurred in August 2014, when she was nine years old. She told her sister that defendant “had sex” with her. She did not tell her mother because she “felt it was wrong” to break her promise to defendant that she would not tell anyone. She was afraid she would never see defendant again. She “loved him as a grandfather” and “didn’t understand what he was doing.” A.P. decided to tell her sister because she found a message her sister had written in A.P.’s diary, saying she could trust her sister with anything and her sister would always love and believe her.
After A.P. disclosed the abuse, she did not have any contact with defendant and received counseling. She immediately stopped having fits. She also started paying more attention in school, doing her school work, and stopped disrupting her class.
A deputy sheriff interviewed A.P. a few days after she disclosed the sexual abuse in August 2014. She told the deputy that she thought the abuse had been occurring since the year before. Defendant first introduced her to the three sex toys and had them rub each other’s genitals with the toys. He did this the mornings after she slept over, when her grandmother was still sleeping, and when they went off-roading in the desert. She recalled it happening at least 10 times at defendant’s house before they did it in the desert. She could not recall how many times they went out to the desert. He also started having anal intercourse with her in the desert. She thought that happened 10 to 13 times. She also described how he made her orally copulate him, and how he made her suck the liquid candy off his penis. He “juiced” in her mouth once, and also “juiced” into her hands when they took the trip to Four Corners, and he made her “wiggle” his penis around. He also licked the liquid candy off her genitalia once when they were in the desert. He kept one of the sex toys under his bed—one he said he used with her grandmother—and hid the other two, but she did not know where.
Shortly after the interview with the deputy, an interviewer at the Children’s Assessment Center interviewed A.P. A.P. told the interviewer that defendant started sexually abusing her the year before and did it every morning she had a sleepover at his house. She again described anal intercourse and the three sex toys; how defendant rubbed her genitalia with one of the vibrators and rubbed himself with it; how they went to the desert and he penetrated her anus with another one of the toys; and how he “juiced” and made her taste it.
During a search of defendant’s home in August 2014, investigators discovered a “vibrator massager” and a bag containing hand towels and lubricant, all underneath the bed. A.P. identified the vibrator massager as one of the sex toys defendant used with her. Also, the hard drive of a desktop computer found in defendant’s room contained deleted images of child pornography. One of the images had a Web site name on it, “Incestvids.com” or “www.incest.”
Two years after A.P.’s initial disclosure, in September 2016, an investigator with the district attorney’s office interviewed A.P. again. This time, consistent with her trial testimony, A.P. recalled the sexual abuse starting much earlier—it started in kindergarten and continued through third grade. It occurred almost every Wednesday and every Saturday morning. Defendant started by showing her sex toys and his penis. He had them touch each other’s genitals and rubbed her with the toys. This continued for a few months and then “got progressively worse” until they were “having . . . complete sex in the middle of the desert every week.” She also described the Saturday morning incidents occurring in the living room, while her grandmother was still sleeping. He made her suck the liquid candy off his penis and used his penis and a sex toy to penetrate her anus. She estimated that defendant had anal intercourse with her 200 to 300 times over the years. She did not disclose earlier because she was concerned no one would believe her, and she did not want to get her grandfather into trouble. But she felt like she “was always on the verge of breaking” and was having tantrums all the time.
A.P. testified that counseling helped her remember the abuse happening much earlier than she had initially disclosed. Her counselor told her parents that, because she had a history of behavioral issues, the abuse had probably been happening for more than the year or so A.P. initially believed. Her stepdad told her “to think back,” and the earlier memories came to her.
A.P.’s mother, H., also sought counseling after A.P.’s disclosure and, through that process, recalled that defendant had also molested her as a child. The molestation occurred at their family home in Oroville, where the family lived when H. was between five and eight years old. Defendant would come into her bedroom and rub her genitalia. She remembered this occurring three or four times.
Dr. Veronica Thomas is a clinical and forensic psychologist. She explained that when children are sexually abused by somebody they know and trust, as opposed to a stranger, they do not always disclose the abuse. Indeed, most such victims never disclose as children. Many victims disclose only when they are adults, and they have suppressed the memories until then. It is possible for child victims to suppress their memories to the extent they actually do not remember the sexual abuse as adults. Children might not disclose abuse by a family member because they are afraid of how the disclosure will affect the family unit. And, children commonly have mixed feelings about a family member who has sexually abused them. When they do disclose, they usually disclose “a little bit” to see how it is received, and then perhaps more if they are believed. Disclosure is a process that can take months or years, and very few children will disclose everything the first time they talk to a professional about the abuse. Dr. Thomas would not be surprised if a child victim disclosed certain acts of abuse and then, two years later, disclosed additional acts that occurred. Children also frequently make conflicting disclosures, but it does not mean the abuse did not occur.
B. Defense Case
Defendant’s wife testified A.P. did not come over to their house every Wednesday after A.P. moved out. She would come over maybe one Wednesday per month. Likewise, she did not sleep over every Friday after she moved out. The Friday-night sleepovers occurred “[o]nce in a while.” Defendant’s wife did not have a custom as to how late she would sleep on Saturdays—it varied. She did not sleep until noon every Saturday, but it was not unusual for her to sleep until 10:00 a.m. When A.P. did visit them, there were times when defendant was alone with A.P. Defendant and his wife took long trips in 2012 and 2013, when A.P. would have been seven and eight, and they were gone for six weeks and three weeks, respectively. After 2013, they would take weekend trips perhaps once a month to see their other children and grandkids. Everyone used the desktop computer in their bedroom, including defendant, A.P.’s uncle, and other adult males who did not live there. Defendant’s wife described the vibrator massager found under their bed as her “shoulder massager,” which she frequently used because of her bad shoulder.
While A.P. lived in defendant’s house from late 2007 to April 2011, her uncle and his family lived there for some of that time as well, from January 2010 to January 2011. Her uncle and his family also lived there from August 2011 to January 2013, after A.P. had moved out. A.P.’s uncle testified that, during that time, A.P. slept over on Friday nights perhaps once or twice a month, but not every Friday. He did not sleep late on Saturdays during this period of time because his young son would wake up early. Even after he and his family moved out, he usually visited defendant’s house on Saturdays, until he moved to another state in July 2013. He did not often see A.P. at defendant’s house on those Saturdays when he visited. He used defendant’s desktop computer, but he never downloaded images of child pornography to the computer, nor did he delete any. When A.P. was around five, she lied to her uncle about hitting his daughter with a rock.
A.P.’s sister, who was 22 at the time of trial, often spent time alone with defendant when she was growing up. He never touched her inappropriately, and she never saw him act inappropriately with A.P. Besides the period when she lived in defendant’s house with her mother and A.P., she also lived in defendant’s house from January to August 2013. A.P. only occasionally slept at defendant’s house on Friday nights during this period. A.P. sometimes came over after school as well; her sister would take her there because she worked at A.P.’s school. Their grandmother often slept until 11:00 a.m., and defendant woke up early.
III. DISCUSSION
Before trial, the People filed a motion in limine to admit evidence of an uncharged sexual offense (§ 1108)—namely, H.’s testimony that defendant had molested her as a child. Defendant argued the court should view H.’s recovered memory of the molestation with skepticism, given that she had numerous opportunities to disclose the information to law enforcement but did not do so until two months before trial. Further, defendant argued, the alleged conduct was remote in time, the nature of the memory prevented effective cross-examination, admission of the testimony would confuse the issues and waste time, and the prejudicial effect of it was overwhelming. The court granted the People’s motion to admit the evidence, ruling its highly probative value outweighed any prejudicial effect. Defendant contends this ruling constituted prejudicial error. We disagree.
Generally, section 1101 makes character or disposition evidence inadmissible to prove the defendant’s conduct on a specified occasion. (§ 1101, subd. (a).) Section 1108 sets forth an exception: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).)
“[T]he 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.” (People v. Falsetta (1999) 21 Cal.4th 903, 915.)
By its terms, section 1108 requires the court to conduct a section 352 analysis before admitting evidence of uncharged sexual offenses. The court should consider: “(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence’s probative value, against the evidence’s prejudicial and time-consuming effects, as measured by the second through fifth factors.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)
We review the court’s ruling whether to admit evidence of uncharged sexual offenses for abuse of discretion. (People v. Nguyen, supra, 184 Cal.App.4th at p. 1116.) We will not disturb the ruling unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (Ibid.)
The court did not abuse its discretion in this case. The uncharged conduct at issue was similar to what A.P. experienced. H. testified that, when she was between five and eight years old, defendant came into her bedroom and rubbed her genitalia. She remembered this occurring three or four times. This is exactly how defendant started abusing A.P.—touching her genitalia—before it progressed to the even more serious forms of charged abuse. Both H. and A.P. are closely related to defendant, were under his care, and were around the same young age when the touching started. We must therefore agree with the trial court that H.’s testimony was highly probative of whether defendant had a propensity for sexually abusing young female relatives. And, while H. described incidents remote in time, their remoteness went to the weight of the evidence, not its admissibility. (People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Moreover, none of the other factors weigh in favor of excluding this probative evidence. H.’s testimony about the touching was far less inflammatory than the evidence from A.P. of the charged acts, which came in through A.P.’s testimony plus three different recorded interviews with her describing use of sex toys, oral copulation, and anal intercourse. H.’s testimony also was not time consuming—it consumed approximately three pages of reported transcript, and cross-examination on the topic consumed less than one page of transcript. Given the relatively minor role H.’s evidence played in comparison to the emphasis placed on and the time consumed by A.P.’s evidence, there was no likelihood of the jurors being confused or distracted from their main inquiry. This is particularly so because the court instructed the jurors they could consider evidence of the uncharged acts only for the limited purposes of motive or intent, and to determine whether defendant “was disposed or inclined to commit sexual offenses,” but the evidence was not sufficient by itself to prove him guilty of the charged acts, which the prosecution still had to prove beyond a reasonable doubt. (CALCRIM Nos. 375, 1191.) In sum, the trial court was well within its discretion to admit evidence of uncharged acts against H.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

CODRINGTON
J.