P. v. Sainez-Muniz

Filed 7/27/06 P. v. Sainez-Muniz CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Martin Gerardo Sainez-Muniz (Muniz) appeals a judgment after his conviction of committing lewd acts upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) We conclude that substantial evidence supports the judgment, the court did not err by admitting evidence of Muniz's prior sexual misconduct, and admission of that evidence did not violate due process or deny Muniz equal protection of the laws. We affirm.

FACTS

Courtney A., age 11, sold candy to raise money for her softball team. Muniz went to her apartment to buy candy. Courtney's mother, Sylvia S., was in another room. Courtney brought Muniz the candy. Muniz told Courtney he liked her T-shirt, which had the word "Angel" across the front. He used his fingers to trace the letters of the word. In doing so, he touched both of Courtney's breasts. Then, as he reached to take pieces of candy, he twice deliberately touched her chest area again with his forearm. Muniz pointed to Courtney's breast and then to the candy and asked her which one should he choose. He then touched her breast. Courtney grabbed an envelope and held it in front of her chest to prevent Muniz from touching her. Muniz left the apartment.

Sylvia S. testified that Courtney told her that Muniz had touched her breasts. Her daughter was upset and crying. Muniz returned and said he needed a bag for the candy he bought. Sylvia S. asked him if he had touched Courtney's "boob." Muniz said, "I may have accidentally hit it while I was trying to get the candy." On cross-examination, Sylvia S. denied that Muniz told her that "he had had some sort of problem at St. John's Hospital."

In the defense case, Emilia Sainez Ruiz and Francisco Muniz Solano, Muniz's mother and father, testified their son has a reputation for honesty and would not commit the charged acts. On cross-examination, the prosecutor asked them if they were aware that Muniz's son and daughter accused him of molesting them in 1999. He also asked if they knew that in 1994 a Saint John's Hospital patient said Muniz touched her breasts, buttocks, and vagina without her consent. They replied they were not aware of those accusations.

Ruth Corona, Muniz's girlfriend, testified Muniz has a reputation for being honest and could not have committed the charged offenses. The prosecutor asked her about the 1994 and 1999 allegations. She said she knew about them, the allegations were false and did not change her opinion about Muniz.

Muniz testified that he did not touch Courtney. He said he had sex with Sylvia S., who was a prostitute. After having sex, she told him he owed her $100. He gave her $30. She later demanded $200. He told Sylvia S. that in 1994 a hospital patient falsely accused him of sexual molestation.

On cross-examination, Muniz said his children falsely accused him of molestation in 1999 because their mother was involved in a custody dispute with him. The patient falsely accused him to pursue a "million dollar suit." Courtney falsely accused him because Sylvia S. was angry because he had not paid the money she demanded. On redirect, he said he was prosecuted for the 1994 incident but not convicted, and the charges were dismissed. In 1999 his children recanted their allegations.

In rebuttal, Sylvia S. said she never had sexual relations with Muniz and that she was not a prostitute.

The Motion In Limine

Before trial, Muniz filed a motion in limine to exclude evidence of his prior sexual conduct. The prosecutor opposed it, claiming Muniz intended to "call the child victim a liar and her mother a prostitute." He said excluding the prior acts would "hamstring the jury's ability to evaluate [Muniz's] credibility." He would not "present such evidence in [the prosecution's] case," but would raise it "to cross-examine" Muniz or to challenge his character witnesses. The court denied Muniz's motion.

DISCUSSION

I. Substantial Evidence

Muniz contends the evidence is insufficient to support the judgment because there was no evidence that "he touched Courtney with unlawful sexual intent." We disagree.

We view the evidence in the light most favorable to the judgment and draw all reasonable inferences to support it. (People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Any touching of a child under the age of 14 violates [Penal Code section 288, subdivision (a)], even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim. [Citation.]" (People v. Lopez (1998) 19 Cal.4th 282, 289.)

Here the jury could reasonably infer that Muniz had the requisite intent from Courtney's testimony about the multiple times that he touched her breasts and the way he touched them. (People v. Martinez (1995) 11 Cal.4th 434, 444-445.) He deliberately traced his fingers on the letters on her T-shirt to touch both breasts. He used his forearm to touch that area again. (People v. Scott (1994) 9 Cal.4th 331, 348, fn. 10 [touching child's breasts is a lewd act].) Jurors could also find that Muniz intended to play a sexual game with the child. He asked Courtney whether he should select her breasts or a piece of candy. The evidence was sufficient. (People v. Martinez, supra, at pp. 444-445.)

II. Abuse of Discretion

Muniz contends the court abused its discretion by allowing the prosecutor to ask questions in the defense case about other prior sexual incidents. We disagree. In a prosecution of a sexual offense, evidence about a defendant's prior sexual misconduct may be introduced as propensity evidence or for impeachment. (Evid. Code, § 1108; People v. Falsetta (1999) 21 Cal.4th 903, 911-912, 922.)

Muniz claims the court erred by allowing the prosecutor to ask his parents and Corona about these prior events. But Muniz introduced their testimony to show his good reputation. "' . . . ''[W]hen a defense witness . . . has testified to the reputation of the accused, the prosecution may inquire of the witness whether he has heard of acts or conduct by the defendant inconsistent with the witness' testimony." [Citation.]'" (People v. Ramos (1997) 15 Cal.4th 1133, 1173.)

Muniz argues the prosecutor should have presented evidence about these events instead of asking his witnesses about these allegations. But "' . . . [s]o long as the People have a good faith belief that the acts or conduct about which they wish to inquire actually took place, they may so inquire.' [Citations.]" (People v. Ramos, supra, 15 Cal.4th at p. 1173.) Muniz has not shown that the prosecutor acted in bad faith.

He suggests that cross-examining his parents and Corona about the 1994 and 1999 allegations led jurors to believe they were established facts. But the court instructed jurors with CALJIC No. 2.42, which states, in relevant part: "These questions and the witness's answers to them may be considered only for the purpose of determining the weight to be given to the opinion of the witness . . . . [¶] These questions and answers are not evidence that the reports are true . . . ." (Italics added.) This properly advises jurors how to evaluate this evidence. (People v. Hempstead (1983) 148 Cal.App.3d 949, 954.) We presume the jury followed this instruction. (People v. Holt (1997) 15 Cal.4th 619, 644.)

Muniz contends the prosecution should not have cross-examined him about the prior events. But it may do so to show propensity or for impeachment. Muniz testified that Sylvia S. was motivated by greed and revenge. The prosecution showed that when faced with prior charges of sexual misconduct, Muniz made similar claims about his accusers. It was entitled to impeach him by showing his pattern of making such accusations. (People v. Falsetta, supra, 21 Cal.4th at p. 922; People v. Mickle (1991) 54 Cal.3d 140, 192 [prosecutor properly cross-examined defendant about prior incidents to show a pattern of conduct].) Rebutting any part of a witness's testimony is relevant for impeachment. (People v. Lang (1989) 49 Cal.3d 991, 1017.)

Muniz also "opened the door" to this by placing his character in issue (People v. Raley (1992) 2 Cal.4th 870, 913), and by using the 1994 incident in his defense case to impeach Sylvia S. He testified on direct that he told her about the patient's accusations. His counsel told jurors that because Sylvia S. knew about the 1994 event, she knew it was easier to falsely accuse Muniz.

Moreover, Muniz has not shown this evidence was unduly prejudicial or that there was a reasonable probability of a different result, had it been excluded. The court instructed jurors with CALJIC No. 2.50.01, which advises them such evidence "is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime[s]." "This instruction will help assure that the defendant will not be convicted of the charged offense merely because the evidence of his other offenses indicates he is a 'bad person' with a criminal disposition. [Citation.]" (People v. Falsetta, supra, 21 Cal.4th at p. 920.) Here the evidence was not more egregious than the charged offenses. The jury heard only Muniz's favorable version of the prior events. The prosecution did not introduce this evidence in its case. Muniz testified that the1994 charges were dismissed. (People v. Mullens (2004) 119 Cal.App.4th 648, 666.)

The jury found Courtney to be credible. Sylvia S.'s testimony supported her claims. But Muniz's testimony was contradictory. He initially claimed that Courtney falsely testified against him because he and her mother had been "flirting." The prosecutor then asked whether Courtney made up an allegation that he molested her. Muniz responded, "I don't know if she made it up." The jury could draw negative inferences about his defense from this response. Muniz later made a different claim. He said Sylvia S. told Courtney to lie because Sylvia S. was angry that he did not "pay her enough money after having sex with her." Muniz talked to the police but never mentioned that Sylvia S. was a prostitute or was angry. The jury could reject his claim that she was a prostitute. Muniz admitted there was no discussion about money before they allegedly had sex. It could find that he falsely testified that he told Sylvia S. about the 1994 incident to concoct a dubious defense theory.

III. Due Process and Equal Protection

Muniz contends that Evidence Code section 1108, which permits the introduction of prior sex offenses as propensity evidence in sex crimes cases violates due process and equal protection. We disagree. Muniz notes that lower federal courts have held that using other crimes evidence to infer criminal propensity violates the due process clause. We are not bound by lower federal court decisions (People v. Bradley (1969) 1 Cal.3d 80, 86), but we are bound by decisions of this state's highest court. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 454-456.) It has held that Evidence Code section 1108 does not violate due process. (People v. Falsetta, supra, 21 Cal.4th at pp. 915-918.) Nor does it violate equal protection. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1312-1313; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

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