P. v. Fabian

Filed 2/6/07  P. v. Fabian CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from a judgment of the Superior Court of Orange County, William  Lee Evans, Judge.  Affirmed.

                        Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Julio Cesar-Moran Fabian challenges his convictions on seven counts involving the commission of lewd acts against two victims under the age of 14.  Defendant was sentenced to 30 years to life for these crimes.  Defendant raises a single argument on appeal – whether the trial court abused its discretion by excluding evidence that, after all the charged acts of molestation by defendant occurred, one of the victims (then a 10‑ year‑ old girl) hugged and inappropriately brushed up against an 18-year-old male.  We affirm.

We conclude the trial court did not abuse its discretion in excluding the evidence because it was not relevant, given the nature of the alleged acts and the time at which they occurred.  Even if the evidence were relevant, the trial court properly determined the risk of prejudice and of unduly consuming time and confusing the issues outweighed any probative value it might have.  Finally, even if we could find an abuse of discretion by the trial court, any error would be harmless.

Statement of Facts and Procedural History

From August 2003 to February 2004, O.M., her husband, and her daughters G. and R. (then ages 10 and 8, respectively) rented a bedroom in a house on Paseo Carmel in San Juan Capistrano.  Until January 2004, defendant, his wife, and his brother‑ in‑ law rented the bedroom next to that of O.  and her family.

In December 2003, when defendant and G.  were alone in defendant's room watching a movie, he turned G.'s face toward him, said â€