Filed 9/26/17 P. v. Pedraza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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, David A. Hoffer, Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Antonio Javier Pedraza of two counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a) [counts 1-2]; all statutory citations are to the Penal Code unless otherwise noted) and sexual penetration of a person under age 18 (§ 289, subd. (h) [count 3]). Pedraza contends the trial court erred in admitting evidence he committed uncharged sexual offenses against the victim. (Evid. Code, §§ 1108, 352.) He also argues the court abused its discretion in denying him probation. For the reasons expressed below, we affirm.

I

Factual and Procedural Background

In February 2015, 16-year-old Jane Doe (born in 1998), a high school sophomore, disclosed to a teacher that Pedraza, her older brother, had been touching her inappropriately. Doe later detailed the abuse to investigators with the Orange County Sheriff’s Department and an interviewer with the Child Abuse Services Team (CAST).

Doe told investigators Pedraza started touching her inappropriately when she was around six years old, in second or third grade. While wrestling with her, Pedraza would rub her legs and breasts over her clothing. Between fifth and sixth grade, Pedraza several times a week touched her under her clothes, inserting his finger into her vagina, and pulling her onto his bed. Pedraza escalated the abuse by putting his penis in her vagina two or three times, the first time when she was in the fifth grade and continuing through the seventh grade. On one occasion, when she was around 11 or 13 years old, Doe recalled it hurt like a “pinch,” and she bled a little. Pedraza also would lick her vagina or “butt” when she was in the eighth or ninth grade. When she was between the seventh and eighth grade, Pedraza put her hand on his penis and “stuff” came out, which made her hand wet. Pedraza warned Doe if she told anyone what they were doing they would take him away and everyone would get hurt.

After her disclosures, Doe showed investigators her bedroom and gave them her diary, which contained entries dated between July and December 2013. These entries described how Pedraza had been sexually abusing her for more than five years.

At trial, Doe claimed she lied to investigators about the abuse, explaining she was drunk and high on marijuana during her interviews with school officials and investigators. She felt pressured by the deputies and told them her brother molested her so she could go home. She also testified she lied about the abuse to the CAST interviewer.

Pedraza spoke with investigators and initially denied any inappropriate conduct with his sister, but acknowledged he might have accidentally touched Doe’s breast on one occasion. Eventually, he admitted he had touched Doe, put his finger inside her vagina numerous times, and had sex with her, but he also claimed during the interview he was only telling them what they wanted to hear to end the interview. He denied touching another younger sister, and told investigators Doe had been going through a rough time and might be angry because their parents had discovered and disciplined Doe for using social media and having a 19-year-old boyfriend.

Following trial in December 2015, the jury convicted Pedraza as noted above. In January 2015, the trial court denied probation and imposed a prison sentence of three years and eight months, comprised of the three-year low term for one lewd act offense (§ 288, subd. (a); count 1), a concurrent three-year low term for the other lewd act offense; (count 2), and a consecutive eight-month term for the sexual penetration offense (§ 289, subd. (h); count 3).

II

Discussion

A. Evidence Code Section 1108

Pedraza contends the trial court violated his due process rights by admitting evidence he committed uncharged sexual offenses. He also argues the court abused its discretion in admitting the uncharged offenses because the evidence was more prejudicial than probative and posed a risk of confusing the jury.

The operative amended information charged Pedraza with three sexual offenses occurring between the date Pedraza turned 18 years old on February 20, 2011, and October 8, 2012, when Doe was 13 years old. The trial court conducted a hearing on the prosecution’s motion to admit evidence Pedraza molested Doe before he turned 18 in February 2011. Pedraza objected to admission of the evidence, arguing it violated his speedy trial and due process rights, and violated Evidence Code section 352. Counsel acknowledged the defense had notice the prosecution intended to “introduce from the victim the whole course of conduct that she can recall,” as disclosed in police and CAST interviews. The court granted the motion to admit the evidence under section Evidence Code section 1108. [1]

Evidence Code section 1108 provides for the admission of propensity evidence in sex offense cases, but only if it is more probative than prejudicial in determining the defendant’s guilt on the charged offenses. (Evid. Code, § 1108, subd. (a); People v. Soto (1998) 64 Cal.App.4th 966, 991-992 [probative evidence of other sexual crimes was “exactly the type of evidence contemplated by the enactment of [Evid. Code] section 1108”].) Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Waidla (2000) 22 Cal.4th 690, 724.)

In People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta ), the Supreme Court described the “careful weighing process” applicable to prior sex crimes under Evidence Code section 352. “Rather than admit or exclude every sex offense a defendant commits, 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.” (Falsetta, supra, at p. 917.)

Courts have upheld the constitutionality of Evidence Code section 1108 based on the essential safeguard Evidence Code section 352 provides against a fundamentally unfair trial. (See, e.g., Falsetta, supra, 21 Cal.4th at p. 922.) An erroneous ruling under Evidence Code section 352 therefore may have constitutional implications, as Pedraza claims here. We review the court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)

Pedraza argues “the uncharged acts had very little probative value because it was evidence of similar acts of child molestation from the same witness, who supplied the evidence of the charged crimes, which can do nothing more than suggest the defendant molested the victim more times than he was charged with.” Pedraza relies primarily on People v. Ennis (2010) 190 Cal.App.4th 721 (Ennis). There, the defendant argued the court erred in admitting the victim’s testimony that he committed uncharged sexual offenses against her in Arizona. Ennis observed, “the probative value seems slight. While evidence the defendant has committed other, similar, crimes is always probative due to its suggestion he has a propensity toward that type of crime, when such evidence comes in a child molestation case, from the same witnesses who supplied the evidence of the charged crimes, and amounts to evidence that the defendant molested the child even more times than he was charged with, it wouldn’t seem to advance the ball in any meaningful way. None of the evidence about the alleged Arizona crimes fills in any missing pieces about what happened in California; nor, since the evidence comes from the same source as the evidence about the California crimes, does it corroborate that California evidence in any significant way.” (Id. at p. 733.)

Nevertheless, Ennis held the prejudicial impact of the evidence did not substantially outweigh its probative value. (Ennis, supra, 190 Cal.App.4th at p. 734; People v. Bolin (1998) 18 Cal.4th 297, 320 [under Evidence Code section 352 “prejudicial” is not synonymous with “damaging”]; People v. Gionis (1995) 9 Cal.4th 1196, 1214 [“prejudice” means evidence that uniquely tends to evoke an emotional bias against the defendant].) The appellate court concluded whatever emotional bias the Arizona evidence tended to invoke against Ennis was trivial given the substantially identical evidence offered on the charged crimes in California. The court also noted, “If the jury was not inclined to believe what [the victim] had told the police about what happened to her in California (before recanting), and what [her mother] testified to at trial about what happened to both C. and [her sister] C.S. in California, it’s difficult to imagine how hearing additional evidence from the same sources, about similar crimes committed against C. in Arizona, would change anything.” (Ennis, supra, 190 Cal.App.4th at p. 734.)

Here, the evidence of uncharged offenses shed light on Pedraza’s relationship to Doe and the progression of his sexual abuse. The course of conduct, including touching that occurred years before the charged incidents, was probative because, as the trial court noted, it showed how “one thing led to another.” In playing and wrestling with Doe when she was six or seven years old, Pedraza also touched her inappropriately. Over the years he escalated his sexual conduct to include oral, anal, and sexual intercourse, but did not sexually abuse his other younger sister, demonstrating a fixation on Doe.

Pedraza argues that unlike Ennis, the evidence had significant prejudicial effect because “some of the uncharged conduct was alleged to have occurred when Jane Doe was as young as six years old and although it was only inappropriate touching it made [Pedraza] look much worse to be accused of molesting such a young child, when the charged offenses were alleged to have occurred when Jane Doe was 12 to almost 14.” We disagree. The trial court reasonably could conclude the inappropriate touching of a six year old was no more likely to evoke an emotional bias against Pedraza than the evidence of anal, oral, and sexual intercourse of a 13-year-old.

Pedraza also complains jurors likely could be “confused or distracted” because some of the uncharged offenses ‘would have fallen between the time periods within which the charged offenses were alleged to have occurred, when Jane Doe would have been about 12-years-four months old through almost 14-years-old, but some would not. Thus, it would be confusing to the jury as to which acts were uncharged and which were charged, which makes it more likely they would find [Pedraza] guilty of a charged act based upon an uncharged one especially because the same acts may have occurred inside and outside the relevant time periods of the charged acts.” Again, we do not discern an abuse of discretion.

The trial court instructed the jury that “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” The court also instructed on the requirement of jury unanimity when evaluating generic testimony covering the charged crimes. (CALCRIM No. 3501.)[2] The court’s instructions lessened, if not eliminated, the risk of jury confusion concerning the charged and uncharged offenses. In any event, there was no danger the jury would find Pedraza committed some offenses, but not others. The case turned on the credibility of Doe’s pretrial accusations and other evidence, such as Doe’s diary. If believed, the jury would convict Pedraza of all the charged crimes; if disbelieved, Pedraza would be acquitted of all charges. Under these circumstances, we do not discern an abuse of discretion or a violation of Pedraza’s due process rights in admitting the uncharged crimes.

B. Denial of Probation

Pedraza contends the trial court abused its discretion by failing to grant probation. (See Cal. Rules of Court, rule 4.414; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 [appellate court reviews the trial court’s failure to grant probation for abuse of discretion].) We again discern no abuse of discretion.

The trial court denied probation and imposed a low-term prison sentence based on the relative seriousness of Pedraza’s offenses, including oral, anal, and vaginal sex taking place over a year and a half, and uncharged sexual misconduct dating back for nearly a decade. The court noted Pedraza persisted in sexual misconduct after he turned 18, exploiting Doe’s vulnerability and love for him, which caused her to suffer extreme emotional injury. The court found a link between Pedraza’s abuse of Doe and her self-harm, including her use of alcohol and drugs, and creating the necessity of her “getting the help that she needs.”

The court did not discount mitigating factors favoring a probation grant. These included Pedraza’s youth at the time the conduct began, his lack of a criminal record, his willingness to comply with the terms of probation, and the significant impact prison would have on him. The court cited the favorable report from a forensic psychologist who evaluated Pedraza (see § 288.1), noting that the psychologist concluded Pedraza had no sexual interest in prepubertal children, and his risk of recidivism was low. The court noted Doe and her family requested leniency, Pedraza would have to serve 85 percent of his sentence (see § 2933.1), he faced significant collateral consequences from his conviction, including sex offender registration (§ 290) and associated career and residential restrictions. The court also recognized Pedraza had a considerable record of community service.

The trial court fully considered the relevant factors favoring a grant of probation, but ultimately determined Pedraza’s offenses warranted imposition of a low-term prison sentence, explaining “denial of probation is based on the fact that there needs to be punishment for this serious of a crime, and that punishment needs to go beyond the county jail.” The court observed the serious nature of the crimes and noted Doe’s vulnerability. The court emphasized Pedraza took advantage of a position of trust, inflicting emotional injury on his sister, and no unusual circumstance prompted him to commit the crimes. The court therefore concluded Pedraza’s behavior reflected “a high degree of callousness.” We cannot fault the court’s conclusion. While substantial mitigating evidence existed, the trial court did not abuse its discretion in arriving at its sentencing decision. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 [burden on party attacking sentence to show sentencing decision was irrational or arbitrary]; People v. Lai (2006) 138 Cal.App.4th 1227, 1256 [trial court has broad discretion in determining whether a defendant is suitable for probation].)

III

Disposition

The judgment is affirmed.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.