Filed 5/23/17 P. v. Duran 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ANGEL DURAN,

Defendant and Appellant.

F070688

(Super. Ct. No. VCF267779)


OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.
Bo S. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Charity S. Whitney and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Defendant was convicted of 20 counts of committing or attempting to commit a lewd act upon a child under the age of 14. In this appeal, defendant contends the trial court improperly allowed the prosecutor to argue uncharged acts as evidence of his propensity to commit similar crimes, but failed to instruct the jury on the use of uncharged acts as evidence of propensity. He also contends the trial court abused its discretion by denying his motion in limine to preclude one of the alleged victims from testifying while wearing her military uniform. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with and convicted of six counts of committing a lewd act upon P.J., a child under the age of 14 years, one count of attempt to commit a lewd act upon P.J., a child under the age of 14, 10 counts of committing a lewd act upon P.C., a child under the age of 14, and three counts of committing a lewd act upon N.N., a child under the age of 14, each count in violation of Penal Code section 288, subdivision (a) or (b)(1). Aggravated circumstance allegations that defendant’s offenses involved multiple victims (Pen. Code, § 667.61, subd. (b)) were found true on all counts and allegations on some counts that those counts involved substantial sexual conduct (Pen. Code § 1203.066, subd. (a)(8)) were also found true.
P.J. and P.C. are sisters; they were defendant’s nieces by marriage. They went to live with defendant and his wife when they were four and five years old, respectively, because their parents were unable to care for them. P.J. testified to three instances in which defendant touched her breasts and vagina or made her touch his bare penis. She also testified similar incidents occurred on numerous other occasions. The incidents of molestation occurred when she was between the ages of four and 11.
P.C. testified to four incidents in which defendant touched her breasts or vagina, or both, made her touch his penis, or, while dressed only in boxer shorts, pressed his penis against her body. She also testified defendant touched her breasts and vagina on more than 10 other occasions. These incidents began when she was five years old. The last incident occurred when she was 13, after which she moved out of defendant’s house.
N.N. is defendant’s niece. She attended family barbecues and swim parties at which defendant was present. She testified to three incidents in which defendant fondled her breasts, rubbed her vagina, and rubbed her buttocks over her clothing. These occurred between the ages of seven or eight and 13.
Defendant testified, denying that he molested any of the three nieces. He elicited testimony that P.J. and P.C. never informed their teachers, their therapist, or the social workers who oversaw their foster care about the molestations. They reported the molestations to the police in February 2012, when they were 18 and 19, respectively. N.N. never told anyone but P.J. about defendant molesting her, until the police came to talk to her during their investigation of defendant.
DISCUSSION
I. Arguing Propensity Evidence in Closing
Defendant argues that the trial court violated his right to due process by ruling that propensity evidence of uncharged crimes was inadmissible under Evidence Code section 352, then allowing the prosecution to argue uncharged acts as propensity evidence during closing argument. Defendant’s argument is without merit.
Section 1101 generally precludes the use of character evidence, including evidence of specific instances of a defendant’s prior conduct, to prove conduct on a specified occasion. (§ 1101, subd. (a).) It precludes the use of evidence of a defendant’s propensity or disposition to engage in a certain type of conduct when offered as the basis for an inference that the defendant acted in conformity with that character and committed the crime or crimes charged. (Cal. Law Revision Com. com., West’s Ann. Evid. Code (2009) foll. § 1101, p. 221.) It does not preclude admission of evidence that defendant committed other offenses when the evidence is relevant to some fact other than the defendant’s disposition to commit the current offense; thus, the evidence may be admissible to prove motive, opportunity, intent, preparation, plan, or knowledge. (§ 1101, subd. (b).)
Section 1108 provides an exception to the prohibition in section 1101. It provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) Section 352 permits the trial court to 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.” (§ 352.) “Section 352 permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption.… This balance is particularly delicate and critical where what is at stake is a criminal defendant’s liberty.” (People v. Lavergne (1971) 4 Cal.3d 735, 744.) Thus, when a criminal defendant is charged with a sexual offense, evidence of other sexual offenses committed by the defendant may be admissible to prove his disposition to commit such offenses and, by inference, to prove that he committed the currently charged offenses, if the trial court finds the probative value of the evidence is not substantially outweighed by its prejudicial effect or the risk of confusion or misleading the jury.
The prosecutions’ motions in limine included a motion to be permitted to use evidence of the offenses committed against each of the three nieces as evidence of defendant’s propensity to commit similar sexual offenses against the other two. The prosecutor represented that she intended to use all of the charged acts as propensity evidence under section 1108 as to the other charged acts, and did not intend to offer evidence of any uncharged acts. The prosecution also sought to use evidence of other charged offenses to show intent and a common plan or design under section 1101, subdivision (b). The trial court indicated it would allow the evidence under both sections.
The prosecution’s proposed jury instructions included CALCRIM No. 1191 evidence of uncharged sex offense. The instruction stated the jury could consider evidence that defendant committed lewd acts that were not charged in this case as evidence defendant was disposed to commit such acts and therefore did commit the offenses charged, if it found the prosecution had proved by a preponderance of the evidence that defendant committed the uncharged acts. The prosecutor explained there were no uncharged acts, but she did not know how to word the instruction when the other acts to be considered were charged offenses involving the other victims. The trial court refused to give the instruction, based on concerns that the reference to preponderance of the evidence would confuse the jury about the standard of proof required for a guilty verdict on the charged offenses.
The trial court instructed the jury with CALCRIM No. 375. This instruction stated that the jury may consider evidence of behavior by defendant that was not charged in the case if it was proved by a preponderance of the evidence; if so, it could be considered for the limited purpose of deciding whether defendant acted with the intent to commit a lewd act on a child or had a plan to commit the offenses alleged against him. It also instructed the jury not to consider this evidence for any other purpose and not to conclude from it that defendant was disposed to commit crime.
In the course of their testimony, P.J. and P.C. testified to specific incidents of sexual contact they recalled. They also testified generally that there were other similar incidents. Defendant asserts the prosecutor argued in her closing argument that P.J. and P.C. were molested many times more than the incidents charged. He implies the prosecutor argued the uncharged acts as the basis for a finding that defendant had a propensity to commit sexual offenses. Defendant concludes that, because the trial court did not instruct the jury with CALCRIM No. 1191, the jury had “no legal instruction on uncharged crimes and their applicable use as propensity evidence.” He claims he “was denied due process because the jury could have just haphazardly made their own conclusions based on approximately 32 uncharged acts to prove the defendant had a propensity to commit a minimal amount of charged acts.”
The prosecutor’s discussion of the uncharged acts was not part of her discussion of propensity evidence. It was part of her explanation about how the jury should match the specific incidents about which the witnesses testified to the counts alleged against defendant. In the discussion, she referred to the testimony that there were multiple other incidents of inappropriate touching and explained defendant was simply charged with “the first time,” “the next time,” and the “last time,” without specifying particular dates on which the incidents occurred.
Later in her closing argument, the prosecutor informed the jury that a single witness’s testimony was sufficient for a conviction, so defendant could be convicted on each count by the testimony of the witness who was the subject of that count. She added that the jury could also use what defendant did to one complaining witness to prove his sexual intent or plan for what he did to another. This was consistent with CALCRIM No. 375 and the trial court’s ruling allowing uncharged acts to be used as evidence of intent or plan.
The prosecutor also argued the jury could use evidence of similar conduct to decide whether defendant was disposed or inclined to commit a sexual offense he was charged with. “So that is another word for propensity evidence and this is exclusive to this type of charge that because he touched [P.J.’s] vagina he was more likely to do it to [P.C.] Or because he did it to [N.N.] he was more likely to do it to [P.J.]”
To the extent defendant complains the trial court admitted evidence of uncharged acts, but did not instruct the jury how to use that evidence, the claim is not supported by the record. The trial court instructed the jury with CALCRIM No. 375, which advised that the acts, if the prosecution proved by a preponderance of the evidence that defendant committed them, could be used for the limited purpose of determining whether defendant acted with the intent to commit a lewd act on a child in this case or whether he had a plan to commit the offenses alleged in this case. The jury was not left without guidance regarding how to use the evidence of uncharged acts, as defendant seems to contend.
To the extent defendant is complaining that the prosecutor erroneously argued that evidence of uncharged acts could be used as evidence of propensity, even though the trial court declined to give the propensity instruction, that claim is forfeited by defendant’s failure to object at the time the argument was made. (People v. Seumanu (2015) 61 Cal.4th 1293, 1361–1362 (Seumanu); People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1218.) A timely and specific objection would have allowed the trial court to consider whether to strike the argument as improper and to admonish the jury to disregard it. (Seumanu, at p. 1362.)
Additionally, no prejudice from the erroneous argument has been demonstrated. The mention of propensity evidence was brief—a mere three sentences. The trial court instructed as to the proper use of evidence of uncharged acts. CALCRIM No. 375 set out the limited purpose for which the evidence was to be used and instructed the jury not to consider it for any other purpose. It instructed the jury not to conclude from this evidence that defendant was disposed to commit crime. The trial court also instructed the jury that it was required to follow the law as the trial court explained it and, if the attorneys’ comments on the law conflicted with the trial court’s instructions, the jury was to follow the trial court’s instructions. In the absence of evidence to the contrary, we assume the jury followed the instructions and applied the law as instructed by the trial court. (People v. Lucas (2014) 60 Cal.4th 153, 321 (Lucas), disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) We have not been apprised of any evidence that the jury failed to follow the trial court’s instructions. Consequently, it is not reasonably probable the defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
II. Witness Testifying in Military Uniform
Defendant contends N.N. testified in military uniform and this unfairly bolstered her credibility with the jury. Demeanor evidence is relevant to the issue of credibility (§ 780), and a witness’s demeanor is part of the evidence. (People v. Adams (1993) 19 Cal.App.4th 412, 438.) From this, defendant concludes the trial court has the ability to exclude demeanor evidence, in this case by prohibiting a witness from testifying in her military uniform, if the probative value is substantially outweighed by the probability admission of the evidence would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352.)
Defendant made an oral motion in limine to preclude any witness from testifying in a military uniform. The trial court denied the motion, but stated it would admonish the jury not to consider the uniform as evidence of veracity or to take it into consideration in making the jury’s decisions. Defendant did not propose a jury instruction to that effect, and the court did not give one. Defendant did not object in the trial court to the failure to give the promised admonition.
We review a trial court’s ruling on admissibility under section 352 for abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) Initially, we question defendant’s premise that demeanor evidence is evidence subject to exclusion under section 352. Generally, the demeanor of a witness is part of who the person is—the person’s appearance, manner, and the way in which the person presents his or her testimony. Realistically, the court cannot weigh the probative value and potential prejudice of most elements of a witness’s appearance or manner, or prohibit the witness from displaying them.
As to the attire worn by those appearing in court, “ ‘[t]he test for attire is whether it interferes with courtroom decorum disrupting justice, i.e., whether it tends to cause disorder or interfere with or impede the functioning of the court.’ ” (Jenson v. Superior Court (1984) 154 Cal.App.3d 533, 541.) Defendant has made no showing that N.N.’s uniform interfered with or impeded the functioning of the court. His argument seems to be that imparting knowledge of N.N.’s military service through the wearing of the uniform caused jurors to ascribe greater veracity to her testimony than they otherwise would have. But the jury was advised of N.N.’s military service through her testimony in response to general background questions. She stated she then lived in Japan, because she was stationed there in the Marine Corps. Defendant did not object to those questions or ask to have the mention of the witness’s military service stricken. Thus, the uniform added nothing to the jury’s knowledge that was not revealed in N.N.’s testimony.
Further, defendant’s argument assumes that jurors in general consider military personnel more credible than others. Defendant cites nothing in support of that assumption, and cites no evidence in the record to show it was true of the jurors in this case. We conclude the trial court did not abuse its discretion by denying defendant’s motion in limine to preclude N.N. from testifying in military uniform.
Defendant complains that the trial judge contributed to the prejudice against defendant by referring to the witness as “Lance Corporal,” asking her two brief questions about her military service after she finished her testimony (one of which had already been answered), and thanking her for her service. Defendant raised no objection to the questions or comments by the trial court, and has therefore forfeited the issue. (See Seumanu, supra, 61 Cal.4th at pp. 1320, 1357.) In any event, while it might have been better practice for the trial court to have refrained from such comments, it was clear from the trial judge’s questions that he did not know the witness and therefore could have had no greater knowledge than the jurors regarding the witness and her credibility. Additionally, the jury was instructed not to take anything the trial judge said or did during the trial as an indication of what he thought about the witnesses. The jurors were also instructed they alone were to judge the credibility of the witnesses and they were to “judge the testimony of each witness by the same standards, setting aside any bias or prejudice” they might have. Finally, the jury was instructed not to let bias, sympathy, or prejudice influence its decision. “In the absence of evidence to the contrary, we assume the jury followed [these] instructions.” (Lucas, supra, 60 Cal.4th at p. 321.)
We conclude defendant has not demonstrated prejudicial error. There was no abuse of discretion in denying defendant’s motion in limine. Additionally, in light of all the facts and circumstances, it is not reasonably probable the jury would have reached a result more favorable to defendant if N.N. had not been permitted to testify in military uniform. (Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.



HILL, P.J.
WE CONCUR:




DETJEN, J.




MEEHAN, J.