P. v. Gutierrez

Filed 6/7/07 P. v. Gutierrez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.

Juan Gutierrez appeals from a judgment convicting him of residential burglary and lewd act on a child. The offenses arose from Gutierrez's conduct of entering a home and undressing a two-year-old child in her crib. He challenges: (1) the admission of uncharged sexual offense evidence; (2) the sufficiency of the evidence to support the lewd act conviction; and (3) the court's failure to instruct on the lesser included offense of attempted lewd act. He also argues the imposition of a 15-year-to life sentence for commission of the sex offense during a burglary as required under Penal Code^[1]section 667.61 constitutes cruel and unusual punishment. We reject his arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2005, P. (Father) and his wife E. (Mother) were at home with their five-year-old son H. and their two-year-old daughter J. That night, they put the children to bed around 7:30 or 8:00 p.m. They had dressed J. in a Velcro-fastened diaper, pajama bottoms and a tank top. As part of the bedtime routine, the parents shut the interior door between J.'s and H.'s bedrooms and left open J.'s bedroom door leading into the hallway so they could hear her. On this particular evening, neither parent had checked to see if the doors and windows were locked before they went to bed.

Sometime after 2:00 a.m., the parents heard footsteps on the hardwood floor coming from the back of the house. They then heard rustling noises in J.'s bedroom and what sounded like weight shifting in J.'s crib. They heard J. make a noise or say "hey" and heard something like coins or a marble hitting the floor and rolling. Father got up to investigate. After Father got up, Mother heard footsteps heading quickly from J.'s room toward the back of the house leading to the back door. Father went into J.'s room, where he found J. sleeping "completely naked" in her crib without her pajamas or diaper on. The pajamas were in the crib and the diaper (which was dry) was on the floor next to the crib. J. was not skilled at dressing or undressing herself; she had never undressed herself in the middle of the night; and she had never put on or taken off her diaper.^[2] Father also noticed coins on the floor by the crib that had not previously been there. The parents dressed J. in the same diaper and pajamas and put her back in her crib.^[3]

Father investigated the rest of the house. He noted that doors that had been shut when he went to bed were open, including the interior door between J.'s and H.'s bedrooms, H.'s bedroom door leading into the kitchen, and the back exterior door leading from the kitchen to the outside deck. Father went outside and saw a backpack and a baseball cap he had never seen before on the deck. The outside gate, which was normally kept latched, was unlatched and ajar, as if someone had gone through it. Mother looked around the house and noticed her wallet (which had contained coins and a dollar) was missing from her purse in the kitchen. Father called the police. The next day a landscaper found Mother's wallet in the backyard of a home in a nearby neighborhood and a neighbor returned the wallet to Mother.

Gutierrez was arrested on June 21, 2005, for an open container violation. During their investigative testing, the police found fingerprints that matched Gutierrez's fingerprints on an insurance card that was in Mother's wallet and on two CD's that were in the backpack on the outside deck. The police also found DNA that matched Gutierrez's DNA on the baseball cap left on the deck.

Evidence of Uncharged Sexual Offense

The prosecution introduced evidence of Gutierrez's uncharged sexual offense that occurred in February 2002. During this incident, Gutierrez exposed his genitals to T., a four-year-old girl, while she was outside near an alley by her home. T. (age eight at the time of trial) and her mother, M., testified about the incident. T. testified that while she was outside in the courtyard a man came up to the gate in the alley. The man showed her his "private part" and beckoned with his finger for her to come to him. T. screamed for her mother and ran to her. T. told her mother what happened, and then went with her mother and pointed out the man. The man was hiding in a crouching position next to a car.

M. testified that when T. called out to her, T. was crying and trembling. T. was pointing towards the alley and saying "[t]here's a man." The man was hiding between the cars in the alley. M. went to confront the man. The man was not exposing himself but he had his zipper down.^[4] M. yelled angrily at the man. A neighbor came outside and hit the man in the face, causing the man's nose to bleed. M. called the police and showed them blood on the ground from the man's nose.

The police took a DNA sample from the blood, but at the time found no DNA matches. Three years later, while investigating the DNA evidence for J.'s case, the police discovered the DNA from the blood matched Gutierrez's DNA found on the baseball cap. M. thereafter identified Gutierrez in a photographic lineup.

DISCUSSION

I. Admission of Evidence of Uncharged Sexual Offense

Gutierrez asserts the trial court abused its discretion in admitting evidence of his uncharged prior sexual offense because the probability of prejudice and confusion outweighed the probative value. He also contends admission of the evidence violated his constitutional rights to due process and equal protection.

During motions in limine, the prosecutor stated she intended to introduce evidence of the uncharged sexual offense that occurred in 2002.^[5] Gutierrez objected to admission of the evidence. To evaluate the issue, the trial court reviewed a detective's preliminary hearing testimony describing the prior offense. The court also held a competency hearing to determine whether T., now age eight, could testify about the incident.

At the preliminary hearing, the detective testified that a Hispanic male masturbated in front of T., who told her mother, M. M. confronted the man and a neighbor hit him in the nose or face, causing him to fall down and bleed. The police collected a DNA sample from the blood, and three years later the DNA was identified as matching DNA from the current case. After the DNA match, M. identified Gutierrez in a photographic lineup.

At the competency hearing, T. testified she was playing outside when a man showed her his front "private part" and told her to go into an alley area. She stated the man had a hand on his "private part" but she did not know if he was holding it. T. screamed for her mother. She told her mother what happened, and they ran to the alley where T. pointed out the man hiding in a car.

The trial court concluded the probative value of the evidence outweighed the potential for undue prejudice and time consumption, and that T. could competently testify about the incident.

A. Evidence Code Section 352

Evidence Code section 1108 ("section 1108") sets forth an exception to the general rule against the use of uncharged misconduct evidence to show a propensity to commit crimes. (People v. Soto (1998) 64 Cal.App.4th 966, 983.) The section allows admission of evidence of another sexual offense when a defendant is charged with a sexual offense unless the trial court determines under Evidence Code section 352 ("section 352") that the probative value is outweighed by the danger of undue prejudice, confusion, or time consumption. ( 1108, subd. (a); People v. Falsetta (1999) 21 Cal.4th at p. 903, 917.)

When considering admission of uncharged sexual offense evidence, the trial court must conduct a careful analysis under section 352 to ensure that the defendant's rights to a fair trial are safeguarded. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-918.) The trial court evaluates the evidence by considering 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 . . . ." (Id. at p. 917.) A trial court's ruling under section 352 will not be disturbed on appeal unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)

Gutierrez asserts the uncharged sexual offense evidence should have been excluded because T. was the only witness to the indecent exposure and her testimony was inconsistent and unreliable.

When the trial court ruled to admit the evidence during the in limine hearing, it had reviewed a detective's preliminary hearing testimony and T.'s testimony at the competency hearing. This evidence consistently revealed that a man (later identified as Gutierrez through DNA evidence) exposed himself to a four-year-old girl. Furthermore, at trial, T. again testified that a man showed her his "private part." At trial, defense counsel had the opportunity, and did, cross examine T. about the inconsistencies between

her testimony at the competency hearing and at trial.^[6] Given T.'s strong recollection that a man exposed his "private part" to her, the trial court reasonably concluded she could competently testify regarding the incident.

Gutierrez also argues the uncharged offense evidence should have been excluded because the indecent exposure was not sufficiently similar to the lewd conduct with J. He notes the uncharged offense was committed outside during the day, while the charged offense was committed in a home at night. Contrary to Gutierrez's suggestion, there is no strict similarity requirement for admission of evidence under section 1108. (See People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41; People v. Soto, supra, 64 Cal.App.4th at pp. 984, 991.) In any event, there were several important similarities between the uncharged and charged offenses. Both offenses involved sexual misconduct against young girls. Also, both girls were strangers to Gutierrez, and were extremely vulnerable because of their age and because they were by themselves when Gutierrez encountered them. Given these similarities, any dissimilarities between the uncharged and charged sexual offenses went to the weight, not the admissibility, of the uncharged offense evidence. (People v. Mullens (2004) 119 Cal.App.4th 648, 659-660.)

The trial court reasonably concluded the conduct was sufficiently similar to warrant admission under section 1108.

Gutierrez further asserts the prior sexual offense evidence was irrelevant and confusing because the uncharged and charged offenses can be established by different intents. The offense of lewd act on a child requires the intent to sexually arouse the defendant or the child. ( 288, subd. (a).) The offense of indecent exposure also requires a "lewd" act, which can be established if the defendant has the intent to sexually arouse himself or another or the intent to sexually offend others. ( 314; People v. Archer (2002) 98 Cal.App.4th 402, 406; see CALJIC No. 16.220.) Gutierrez argues the jury could have found he committed the uncharged indecent exposure with the intent to sexually offend, and then used this finding to unreasonably speculate that he committed the lewd act offense with the intent to sexually arouse. The argument is unavailing.

The court instructed the jury pursuant to CALJIC No. 2.50.01 that if it found Gutierrez committed the prior sexual offense by a preponderance of the evidence, this alone was not sufficient to prove beyond a reasonable doubt that he committed the charged crime, but was simply one item the jury could consider, along with all other evidence, in determining whether Gutierrez was guilty beyond a reasonable doubt of the charged crime. Pursuant to CALJIC 10.41, the jury was instructed that the charged lewd act offense required an intent to sexually arouse. Consistent with these instructions, in closing arguments the prosecutor stated that the prior sexual offense evidence could not be used to prove Gutierrez committed the charged crime, but that it could be used to show he had the propensity to commit lewd acts on children and to buttress the circumstantial evidence that he committed the charged offense with a sexual intent.

Based on the instructions and closing arguments, the jury knew it could not convict Gutierrez unless it found he acted with the intent to sexually arouse, and that the prior sexual offense was only one item it could consider when evaluating intent, and that the prior offense could not alone establish the required intent. There is nothing in the record to suggest the jury might have thought the intent defined for the uncharged offense could be used to establish the intent for the charged offense. The different definitions of intent for the uncharged and charged offenses did not render the uncharged offense evidence irrelevant or confusing.

Finally, Gutierrez contends the uncharged sexual offense evidence should have been excluded because uncharged misconduct that is not based on a conviction has a greater prejudicial effect than evidence of prior convictions. In Falsetta, the court recognized the prejudicial impact of "the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses." (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Here, the uncharged sexual offense involved indecent exposure during the day in an open area with no touching. The current offense involved entry into a little girl's bedroom at night while her parents were sleeping, and the undressing of the girl. This is not a case where the uncharged offense was more egregious than the charged offense so as to create a danger that the jury might convict to punish for the uncharged offense. Further, the DNA match for the uncharged sexual offense evidence ensured that the jury did not have to spend an undue amount of time determining whether Gutierrez committed the uncharged offense.

The trial court did not abuse its discretion in admitting evidence of Gutierrez's uncharged sexual offense.

B. Constitutionality

For the first time on appeal, Gutierrez raises several constitutional challenges to section 1108 and its accompanying instructions. He asserts admission of propensity evidence under section 1108 violates his federal and state constitutional rights to due process and equal protection. Further, he asserts the instruction that the uncharged sexual offense need only be proven by a preponderance of the evidence could improperly allow the jury to convict him of the charged offense without finding guilt beyond a reasonable doubt.

Assuming Gutierrez has not waived these contentions on appeal, they have been repeatedly rejected by the courts, and we adhere to this established precedent. (See People v. Falsetta, supra, 21 Cal.4th at pp. 916-922 [due process]; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 [equal protection]; People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395 [same]; People v. Reliford (2003) 29 Cal.4th 1007, 1013, 1015-1016 [preponderance of the evidence standard].) On the instructional issue, Gutierrez's citation to Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 822-823, does not support his assertion of error. Unlike the situation in Gibson, here the jury was expressly instructed that even if it found the prior sexual offense true by a preponderance of the evidence, it could not convict unless it found the defendant guilty of the charged offense beyond a reasonable doubt. (See CALJIC No. 2.50.1.) Finally, to the extent Gutierrez suggests that his constitutional claims should prevail under the federal Constitution even if they fail under the California Constitution, the assertion is unavailing. (See People v. Falsetta, supra, 21 Cal.4th at pp. 920-921 [discussing federal cases upholding comparable federal statute allowing admission of prior sex offenses]; People v. Carpenter (1997) 15 Cal.4th 312, 382 [discussing United States Supreme Court cases adopting preponderance-of-the-evidence standard for uncharged crimes].)

II. Sufficiency of the Evidence

Gutierrez contends there was insufficient evidence that he had the requisite intent to commit the lewd act offense. When reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792.) The standard is the same when the prosecution relies mainly on circumstantial evidence. (Ibid.) Because intent is inherently difficult to prove by direct evidence, intent may properly be inferred from " 'the act itself, together with its surrounding circumstances . . . .' " (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Stanley, supra, 10 Cal.4th at p. 793.)

Gutierrez argues the evidence was insufficient to prove he had the intent to arouse his sexual desires while removing J.'s clothes. The offense of lewd act upon a child is committed by any touching with the intent to sexually arouse the defendant or the child. (People v. Martinez (1995) 11 Cal.4th 434, 442.) A touching of the bare skin or "private parts" is not required; any type of sexually motivated contact with the child suffices to establish the crime. (See id. at pp. 442, 444; People v. Austin (1980) 111 Cal.App.3d 110, 115; People v. Meacham (1984) 152 Cal.App.3d 142, 153.)

The evidence showed that Gutierrez entered a home in the middle of the night and went into the bedroom of a two-year-old girl. He did not know the residents of the home and had no legitimate reason to be there. He removed the girl's pajamas and diaper. His removal of the little girl's clothing to expose her "private parts" at night in the home of a stranger supports an inference that he acted with lewd intent. This inference was buttressed by Gutierrez's prior conduct of exposing his genitals to a little girl while beckoning her to come towards him. The evidence was sufficient to support the jury's finding that Gutierrez had the intent to arouse his sexual desires when he undressed the girl.

III. Refusal to Instruct on Attempted Lewd Act

Gutierrez asserts the trial court erred in failing to instruct on the lesser included offense of attempted lewd act on a minor. The court ruled there was inadequate evidence to support the attempt instruction and such an instruction would confuse the jury. We review this issue de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)

Even in the absence of a request, a trial court must instruct on a lesser included offense "whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present." (People v. Huggins (2006) 38 Cal.4th 175, 215.) Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (Ibid.) If the evidence in support of the lesser offense is "minimal and insubstantial," the court need not give the instruction. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.)

Gutierrez asserts that the lesser included attempt instruction was required because the record can support a finding that he did not have a sexual arousal intent when he removed J.'s clothes and diaper. He contends a reasonable jury could have found his act of undressing the child was nonsexual conduct that was merely preparatory to committing a subsequent, sexually motivated touching that he never accomplished. He asserts that it was a question of fact for the jury to decide whether his act of removing the child's clothes was concurrent with a sexual arousal intent so as to establish a completed, rather than a merely attempted, lewd act offense.

Gutierrez's argument is flawed as he fails to recognize that if he did not have a sexual arousal intent when he undressed the child, he was not guilty of the crime of lewd act or attempted lewd act. The lewd act offense is completed whenever the defendant engages in any type of touching of a minor for sexual arousal, even if the touching is not inherently lewd and even if there is no actual arousal of sexual passion. (People v. Martinez, supra, 11 Cal.4th at pp. 442, 444, 452; People v. Meacham, supra, 152 Cal.App.3d at p. 156.) An attempt to commit a crime requires " 'a specific intent to commit it and a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation and yet short of actual commission of the crime.' " (People v. Imler (1992) 9 Cal.App.4th 1178, 1181, italics added.) Thus, to commit the offense of attempted lewd act, the defendant must have the specific intent to commit a lewd acti.e., the intent to sexually arouse. An attempted lewd act might occur, for example, if the defendant intends to have a minor engage in sexual conduct and takes steps beyond mere preparation to carry out the offense, but for some reason the intended touching does not in fact occur. (See ibid.) However, an attempted lewd act cannot occur if the defendant does not entertain a specific intent to commit a sexually motivated touching while engaging in the conduct. (See 1 Witkin, Cal. Criminal Law (3d ed. 2000), 53, pp. 262-263.)

If Gutierrez did not intend to sexually arouse when he undressed the child, he did not commit a lewd act and he did not commit an attempted lewd act. By the same token, if he did intend to sexually arouse when he undressed the child, he completed the lewd act offense regardless of whether he also intended to commit an additional lewd act and regardless of whether he was actually sexually aroused at the point of the undressing. Notably, when requesting the attempt instruction from the trial court, Gutierrez did not argue, as he does on appeal, that the instruction was warranted because a jury could find he merely attempted the crime when he removed the clothing. Rather, he argued to the trial court that the attempt instruction should be given because the jury could find he was not the one who undressed the child. On appeal, he does not reiterate this latter argument, but rather assumes that the evidence showed he took off the child's clothes. Once the jury found that Gutierrez removed the clothes, the sole remaining question for the jury was whether he performed this act with a sexual motivation so as to establish the lewd act offense.^[7]

The lewd act cases cited by Gutierrez to support his argument that an attempt instruction was required are inapposite. (See, e.g., People v. Austin, supra, 111 Cal.App.3d at pp. 113-114 [holding that it was question of fact whether defendant had sexual arousal intent while pushing child to certain area prior to making child pull down child's pants so as to establish lewd act offense from pushing alone]; People v. Webb (1958) 158 Cal.App.2d 537, 542 [holding defendant could not be punished for both preparatory conduct (placing arm around child's shoulder while going to secluded area and then placing hands on child just prior to oral copulation) and subsequent act of oral copulation].)

Additionally, Gutierrez's reliance on the concept that there must be a concurrence of act and sexual intent is similarly misplaced. Based on the rule that culpability requires a union of act and intent, the question of whether the defendant has committed a lewd act based on a particular touching of a child depends on a factual assessment of the defendant's state of mind during that touching. (See People v. Martinez, supra, 11 Cal.4th at p. 452; People v. Austin, supra, 111 Cal.App.3d at pp. 113-114; People v. Mickle (1991) 54 Cal.3d 140, 176.) As noted, a finding that the defendant did not have a sexual arousal intent during the touching would preclude reliance on this touching to establish a lewd act offense. And, because of the lack of intent, there could be no culpability for an attempted lewd act arising from that touching. Gutierrez's argument that the jury could have found he committed an attempted lewd act based on a lack of sexual intent when removing the child's clothes is unavailing.

IV. Cruel and/or Unusual Punishment

Based on the provisions of section 667.61, Gutierrez received a sentence of 15 years to life for the section 288 lewd act offense because he committed the sexual offense during a burglary. ( 667.61, subds. (b), (c), (e).) He asserts that the 15-year-to-life sentence required by section 667.61 constitutes unconstitutional cruel and/or unusual punishment both on its face and as applied to him. To support his argument, he asserts the statute does not allow for gradations in culpability based on the circumstances or mitigating factors; punishes sex offenders as harshly as second degree murderers ( 190, subd. (a)); and punished him more harshly for a single lewd act offense than the punishment afforded continuous child molesters who reside with or have recurring access to the minor ( 288.5).

A sentence violates the federal Constitution if it is grossly disproportionate to the severity of the crime, and it violates the California Constitution if it shocks the conscience and offends fundamental notions of human dignity. (People v. Alvarado (2001) 87 Cal.App.4th 178, 199 (Alvarado).) To determine whether a punishment is constitutionally excessive, the courts consider such factors as the nature of the offense and the offender, the penalty imposed in the same jurisdiction for the same offense, and the punishment imposed in other jurisdictions for the same offense. (Ibid.) Because it is the Legislature's role to determine the appropriate penalty for criminal offenses, a defendant must overcome a considerable burden to convince a court that the punishment is disproportionate to the defendant's culpability. (People v. Crooks (1997) 55 Cal.App.4th 797, 807.)

Section 667.61 mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that are committed under one or more aggravating circumstances. (Alvarado, supra, 87 Cal.App.4th at p. 186.) The purpose of the statute is to require lengthy sentences "where the nature or method of the sex offense 'place[d] the victim in a position of elevated vulnerability.' " (Ibid.) In Alvarado, the court evaluated the constitutionality of section 667.61 in the context of a defendant who received a 15-year-to-life sentence for committing a rape during a burglary. (Alvarado, supra, at p. 200.) The Alvarado court noted that a 15-year-to-life sentence was about the same as the sentence for committing second degree murder, but rejected the notion that this reflected an excessive punishment. The court reasoned that whereas second degree murder can be committed without a specific intent to kill, rape during a burglary requires the defendant to decide to commit a sexual assault inside a residence. Further, the Alvarado court recognized that compared to other jurisdictions, California's sentence was one of the longest punishments and did not allow for the trial court to exercise its discretion in selecting a sentence. (Ibid.) However, the court concluded that the scheme rationally reflected a "zero tolerance toward the commission of sexual offenses against particularly vulnerable victims" and that it was not unconstitutional on its face. (Id. at pp. 200-201.) We agree with the analysis in Alvarado and conclude it applies equally to the commission of a section 288 lewd act offense during a burglary. We reject Gutierrez's facial challenge to the statute.

We likewise find no unconstitutional punishment when considering the particular circumstances of Gutierrez's case. Gutierrez contends the 15-year-to-life sentence is disproportionate because section 288.5 imposes a maximum determinate term of 16 years on a defendant who engages in repeated molestation and who resides with the child or who has recurring access to the child. Gutierrez committed the sexual offense during an unauthorized entry into a stranger's home. This type of residential burglary has long been recognized as highly dangerous conduct deserving of enhanced punishment given the potential for a violent reaction from the invasion into the home. (See People v. Estrada (1997) 57 Cal.App.4th 1270, 1281.) The fact that Gutierrez committed the lewd act during an unauthorized entry into the home provides a reasonable basis for punishing him more severely than a defendant who commits lewd acts without invading a home.

The facts of the offender and the offense also do not show excessive punishment. Gutierrez has twice sexually preyed on vulnerable little girls. His current offense of entering the home of a stranger in the middle of the night and disrobing a sleeping child

constitutes an egregiously invasive and frightening act. It is not disproportionate or shocking to impose a 15-year-to-life term for conduct that threatened one of the most vulnerable members of our society.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P.J.

IRION, J.

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^[1] Subsequent statutory references are to the Penal Code unless otherwise specified.

^[2] Mother testified that if J. tried to dress or undress herself, it took a long time, for example at least 30 minutes to put on a top and pants. Father testified J. was not able to dress or undress herself.

^[3] Mother testified that when she got up from bed, Father came out of J.'s bedroom holding J. asleep on his shoulder. J. was wearing the tank top but was naked from the waist down.

^[4] A police report prepared at the time of the incident did not include a statement by M. that the man's zipper was open.

^[5] Because the statute of limitations had expired, Gutierrez was not charged for the 2002 offense.

^[6] For example, at the competency hearing T. testified the man was wearing a hat and she did not know who Gutierrez was. Two days later at trial, she testified she did not remember if the man had something on his head and she identified Gutierrez as the man in the alley. Defense counsel cross-examined her on these points. Notably, T.'s trial testimony was not necessary to identify Gutierrez as the perpetrator of the uncharged offense given the DNA evidence tying him to the uncharged offense.

^[7] Because Gutierrez has not raised the issue on appeal, we need not discuss whether an attempt instruction was required based on the theory that Gutierrez did not undress the child.