Filed 7/10/17 P. v. Mytton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

KEITH EDWARD MYTTON,

Defendant and Appellant.

F071358

(Fresno Super. Ct. No. F14905322)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Keith Edward Mytton was convicted of multiple felony offenses based on the sexual molestation of his daughter (C.M.), and the sexual relationship he had with a minor (S.H.). He was sentenced to 15 years to life, plus 14 years.
On appeal, defendant contends the court erroneously admitted propensity evidence pursuant to Evidence Code section 1108, and the jury was improperly instructed on this evidence. Defendant concedes his attorney did not object on either point and raises alternative claims of ineffective assistance. We affirm.
FACTS
Defendant and his children
Defendant and Julie B. are the parents of C.M. (born 1997) and R.M. (born 1996). At the time of trial, C.M. was 17 years old and a high school senior.
In approximately 2001 or 2002, defendant and Julie separated; C.M. was four years old. Defendant and Julie shared equal custody of their two children. The children lived at Julie’s house from Wednesday to Sunday. They went back to defendant’s house on Sunday mornings. Julie lived with Kirk, C.M.’s stepfather.
Defendant lived in a house on East Fountain Way in Fresno. C.M. testified the house was very dirty, and a lot of people would come and go from the residence.
C.M.’s testimony about S.H.
C.M. testified that sometime in 2004, S.H. moved into defendant’s house to be the children’s babysitter. C.M. believed she was seven years old, and S.H. was 16 years old. C.M. testified that defendant and S.H. eventually became “a couple” and were romantically involved. Both defendant and S.H. used drugs.
C.M. testified that in November 2004, S.H. gave birth to a daughter. Defendant was the baby’s father, and the baby was C.M.’s half sister. C.M. thought S.H. was 16 years old when she became pregnant, and gave birth when she was 17 years old. C.M. testified that defendant married S.H. when she became 18 years old.
MOLESTATION OF C.M.
The shower incidents
C.M. testified defendant first molested her when she was about seven years old. Defendant told her that they were going to take a shower together. While they were in the shower, defendant touched and then put his fingers inside her vagina, and it was painful. He also masturbated.
C.M. believed defendant molested her in the shower four or five times, and continued to do so until she was nine or 10 years old. She eventually became used to it.
C.M. testified that when she tried to resist the shower molestations, defendant pushed or slapped her. During one shower incident, defendant put his finger inside C.M.’s anus. There were a few times when defendant told C.M. to stroke his penis with her hand. Whenever she became uncomfortable with his conduct, defendant told her, “ ‘That’s what girls do for their dads.’ ”
The Bedroom Incidents
C.M. testified there were at least two incidents where defendant sexually molested her in the bedroom. One occasion occurred after an incident that happened when C.M. had been staying at her mother’s house. When C.M. returned to defendant’s custody, she told him that she had fallen down, and her stepfather picked her up and helped her. Defendant became very angry that her stepfather touched her. He told C.M. to go into the bedroom and take off her clothes. C.M. obeyed and apologized for letting her stepfather pick her up. Defendant put his fingers in her vagina and rubbed her entire body. Defendant was very rough toward her. When C.M. tried to move, defendant grabbed or slapped her, and told her to stay still.
C.M. testified defendant molested her in the bedroom more than twice but she could not remember every incident. The bedroom incidents happened when C.M. was eight to 10 years old.
C.M. testified that during three or four of the bedroom molestations, defendant was more aggressive than other incidents. He grabbed, pushed, and/or slapped her. C.M. thought he was high or coming down from methamphetamine.
Additional incidents
In 2007, defendant became involved with Shamra Mills, and she moved in defendant’s house with her own children. C.M. testified defendant molested her on an occasion after he argued with Mills about C.M. Defendant told C.M. to go into her room. Defendant followed her and told her to take off her clothes. He touched her vagina and his penis.
C.M. testified that she suffered bleeding from her vaginal area at least three times after defendant molested her.
C.M. believed that defendant molested her two or three times a month while she lived at his house. She could not remember the details of each incident because “[s]o much has happened.”
The last bedroom molestation
C.M. testified the last molestation in the bedroom happened in 2007. Defendant told C.M. that her mother wanted him to submit to drug tests, and he would not see her for a while. C.M. knew she was going to move back to her mother’s house and not return to defendant’s house.
On her last night at defendant’s house, defendant came into her bedroom while she was undressing. There were bunk beds in that room; C.M. slept on the bottom bed and her brother slept on top. C.M. was lying in bed and defendant repeatedly said he was sorry. Defendant pulled down his boxer shorts and touched his penis. He put his finger in C.M.’s vagina, and put his mouth on her chest. C.M.’s brother was asleep on the top bunk, and he did not wake up.
C.M. testified the molestations only ended because she permanently moved out of defendant’s house.
The children move out of defendant’s house
In December 2007, C.M. and R.M. moved out of defendant’s house. Julie, their mother, obtained a court order for defendant to submit to drug tests. Defendant failed to take the tests, and the court ordered the change in custody so that the children permanently lived with Julie.
In 2008, the court granted Julie sole custody of the two children, with defendant to have supervised visitation. Defendant often told Julie he was going to take her to court, but he never tried to change the custody or visitation order.
After she moved out of defendant’s house, C.M. talked with defendant a few times on the telephone. Defendant told Julie that he could not afford the supervised visitation. C.M.’s stepfather sent money to defendant to pay for a supervised visit, but defendant did not show up. Aside from mediation hearings, C.M. never saw him again. She was upset and thought that he did not care anymore.
C.M. discloses the molestations
C.M. testified she did not initially tell anyone about the molestations because she was ashamed and did not want people to think she was weird. She felt stupid because she believed what defendant told her, that the molestations were normal behavior. She also believed defendant’s lies about her mother, that her mother did not love C.M. Defendant had told C.M. that her mother did not need to know what happened in his house. C.M. was also scared that defendant would hurt her if she told someone about the molestations. She tried to block out what had happened to her.
In December 2013, C.M. was 16 years old and told her therapist that defendant had molested her. C.M.’s therapist then told her mother about the molestations. Julie was shocked, angry, and heartbroken for C.M.
C.M.’s pretrial interviews
On December 30, 2013, Officer John Rose interviewed C.M. C.M. told Rose that defendant had molested her, described the shower and bedroom incidents, and said defendant put his fingers in her vagina and anus, masturbated, and made her touch his penis. She said her brother was usually asleep when the molestations happened. She also said defendant was abusing drugs at the time. C.M. said she never told anyone because she thought defendant would beat her.
In March 2014, Detective Christine Gray interviewed C.M., who said the shower molestations started in September 2004 when she was six years old, and regularly occurred for six or seven months. C.M. described the first incident in the bedroom, which happened when defendant learned that her stepfather had carried her. As defendant molested her, he said, “ ‘Now who are you going to let touch you?’ ”
Pretext call
In April 2014, Detective Gray arranged for C.M. to place a recorded telephone call to defendant. Gray testified that C.M. was willing to talk to him, but she was sure defendant would deny doing anything to her. The recording was introduced at trial.
The call began cordially as C.M. told defendant what was going on in her life. As the call continued, defendant asked C.M. if “you guys can forgive me for mistakes I made … and I know I did things I should [not] have done you know and there [is] no excuse for it.” Defendant explained his mistakes were not giving the children the space they needed and not spending more time with them. Defendant also admitted that he had used drugs.
C.M. told defendant that she was upset about things that happened, and when he made her take a shower with him. Defendant said she might not remember, but he never took a shower with her unless she requested it, and it never happened after she was eight years old. Defendant repeatedly told C.M. that she had asked to take showers with him, it had been fine with her, and he tried to cover his body because he was uncomfortable.
C.M. told defendant that she remembered defendant did not necessarily touched her “in the right way and stuff.” Defendant said he never touched her except in the proper way and he always protected her. Defendant told C.M. that she had developed “some kind of unusual thoughts” because he had not done “anything that you didn’t request.” C.M. told defendant that these things happened when he was on drugs. Defendant said the drugs never clouded his memory or made him lose control.
Detective Gray testified C.M. became very upset during these portions of the call.
Expert testimony
Dr. Randall Robinson, a clinical psychologist, testified about the stages of child sexual abuse accommodation syndrome, a child’s coping mechanisms, and why a child would not report the molestation. Even if a child is moved out of an unsafe environment, it might still take years until that person disclosed the molestations.
S.H.’S TESTIMONY
After the police interviewed C.M., they contacted S.H. and learned about her sexual relationship with defendant while she was a minor. S.H. was interviewed by the police in May and August 2014.
The police obtained saliva samples, and a criminalist testified that her daughter’s genetic profile was 230 million times more likely to occur if she was the child of defendant and S.H.
S.H. testified at trial about both her sexual relationship with defendant while she was a minor, and her observations of defendant’s actions toward C.M.
S.H. moves in with defendant
S.H. (born 1987) was 28 years old when she testified at trial. S.H. had been in and out of foster care since she was three years old. When she was 15 years old, she ran away from a foster home and lived with her aunt.
In 2003, around the time of her 16th birthday, her aunt took S.H. to defendant’s house to babysit C.M. and R.M. S.H.’s aunt never returned, and S.H. stayed at defendant’s house and lived there. S.H. testified that defendant knew she was a minor who ran away from foster care.
S.H. testified she already had a methamphetamine problem when she was 11 years old. However, she was not using drugs at the time her aunt left her with defendant.
S.H. testified she began having a sexual relationship with defendant within the first week of living at his house. Defendant was in his early 40’s, and she was 16 years old. After their first act of sexual intercourse, defendant and S.H. used methamphetamine. Thereafter, defendant and S.H. used methamphetamine and marijuana on a daily basis, usually before they had sex. The drugs were always around the house, and defendant was always on methamphetamine. There were other people who were regularly in and out of defendant’s house, and they also used drugs.
S.H. testified she had sexual intercourse with defendant almost every day. They also engaged in digital sex, oral copulation, and sodomy. They often had sex in the shower, or in the living room when the children were not staying at the house.
S.H. testified defendant was an auto mechanic, who apparently worked out of the residence’s garage. There were always lots people around the house. He became paranoid that his friends would learn that she was a minor. Defendant always told S.H. to say that she was 18 years old, so he would not get in trouble for having sex with a minor, and his friends would give them drugs.
S.H.’s pregnancy
S.H. testified that around March 2004, she became pregnant with defendant’s child. She was 17 years old. In May 2004, S.H. realized she was pregnant and told defendant. Defendant pressured S.H. to have an abortion. Defendant was afraid he would go to jail because S.H. was a minor, and he would lose custody of C.M. and R.M. “His whole focus was everything to do with his custody arrangements. That’s all he ever talked about.” S.H. wanted to keep the child and refused to have an abortion. S.H. testified their sexual activities slowed down and then stopped after defendant learned she was pregnant.
In June 2004, S.H. moved out of defendant’s house because of their argument about the abortion. A couple of months after moving out, S.H. decided to turn herself in to social services because there was a chance she could lose the baby. S.H. was again placed in a foster home.
About a month before the child’s birth, S.H. went to defendant’s house and talked to him about being a part of the child’s life. Defendant agreed and they maintained contact by telephone until S.H. gave birth. S.H. also met defendant at a bowling alley while he was there with his children.
Later in 2004, S.H. gave birth to their daughter, who was premature. S.H. testified she was 17 years old and still in foster care when the baby was born. S.H. testified she left the father’s name blank on the child’s birth certificate because she had promised defendant that she would not identify him as the father so he would not go to jail.
Defendant and S.H. get married
S.H. testified she left the foster home with her baby on her 18th birthday. In February 2005, just after her 18th birthday, defendant and S.H. were married. Defendant was 43 or 44 years old. S.H. and the baby moved into defendant’s house. S.H. wanted to marry defendant because she was in love, and wanted their daughter to have a family. However, S.H. testified defendant agreed to marry her because she told him that once she was 18 years old, she was eligible to receive survivor’s benefits from her father’s death.
After the marriage, S.H. received about $28,000 in benefits, and they used the money to buy furniture for defendant’s house, tools, a business license for defendant, and drugs.
In 2007, S.H. was convicted of felony possession of stolen property and felony grand theft, and went to jail. When S.H. was released, she discovered that Shamra Mills and her children were living at defendant’s house, and defendant was having a relationship with her.
In 2008, S.H. filed for divorce from defendant because he was abusive. In 2012, S.H. was convicted of felony identity theft.
S.H.’s testimony about C.M.
S.H. testified that when she initially moved into defendant’s house, C.M. and R.M. lived with defendant for half the week, and then went back to their mother’s house. C.M. was about six years old, and R.M. was seven years old. She liked the children and they initially got along, but they eventually did not like that she was around.
S.H. testified that she knew defendant took naked showers with C.M., from the time the girl was about six years old. S.H. told defendant that it did not seem right. Defendant said C.M. was his daughter and he was not doing anything wrong. S.H. believed C.M. became angry with her because “I was trying to come between them and stuff, because I was trying to stop the showers and stuff. I felt that it was wrong and [defendant] didn’t see anything wrong with it.” S.H. testified that defendant took showers with C.M. at least 10 times, up to when S.H. moved out while she was pregnant.
S.H. testified defendant also slept with C.M. in the girl’s bed. C.M. and R.M. shared bunk beds, but defendant never slept in R.M.’s bunk. Defendant slept with C.M. both before and after he was married to S.H. S.H. thought it was wrong for defendant to sleep with C.M. after he was married.
S.H. testified that she was not always in the house after she married defendant. Sometimes he threw her out or she was in custody in jail. S.H. believed defendant stopped taking showers and sleeping with C.M. about one year after she talked to him about it.
DEFENSE EVIDENCE
Defendant (born 1961) testified he had drug problems throughout his life. Defendant testified he never inappropriately touched C.M. Defendant admitted he took showers with C.M., but claimed she asked him to get into the shower with her because she had a “fear of the house.” It was an “innocent thing.” C.M. was a “needy” child who always wanted to be with him, and he did it to “appease” her. Defendant stood in front of C.M. in the shower and never exposed his genitals. Defendant never realized taking showers with his daughter would be “such a big deal.”
Defendant testified that in 2004, S.H. arrived at his house with her aunt, who said she needed a safe place to live. The aunt said S.H. had been living with a 50-year-old man, and she was trying to keep S.H. away from that person. The aunt never said that S.H. was under the age of 18 years. Defendant never asked her age but assumed S.H. was 19 or 20 years old based on her appearance. Defendant testified that he did not know S.H. was a minor until after she was pregnant. He never told S.H. to lie to his friends and claim she was 18 years old.
Defendant admitted he started having sex with S.H. shortly after she moved into the house. They engaged in sexual intercourse, oral copulation, digital penetration, and sodomy. Defendant also admitted he was the father of S.H.’s daughter.
Defendant and S.H. used methamphetamine and marijuana during their relationship, but he tried not to use drugs when the children were staying at his house.
S.H. told defendant her age when she became pregnant. Defendant was shocked. Defendant did not want to have the child because they had not been together very long. He was also concerned about his custody dispute with Julie. However, he eventually married S.H. to show his children that he could take responsibility. Defendant denied that he married S.H. for her survivor benefits. Defendant clarified that S.H. only received between $12,000 to $13,000, because some of the money was deducted to repay the foster care system.
Defendant testified that S.H. once told him not to take showers with C.M., and they argued about it. He eventually stopped taking showers with C.M. when she was seven years old because she was older and it was inappropriate.
Defendant testified that the children’s mother obtained the court order for him to take drug tests, but she did it without prior notice. Defendant admitted he had been using drugs during that period. He did not comply with the order because his work as a mechanic conflicted with the scheduled tests. As a result, he lost custody of the children. He tried to maintain contact with them, but they did not respond to his telephone calls or e-mail messages. Defendant did not go to court to regain custody because he did not know how to do that.
Defendant testified he was “amazed” when C.M. called him because he had not heard from her for a long time. He did not realize the call was being recorded. He was thrilled to talk to her, until she started asking “crazy things” that “blew me away.” Defendant was shocked by her accusations that he touched her and absolutely denied it during the call.
REBUTTAL
Detective Gray testified about her recorded interview with defendant in June 2014. Defendant said he had taken baths with C.M. since she was born, when the family was still living together. After the separation, he took showers with C.M. only three or five times because his daughter asked him to, and it was “a bonding thing.” He always held a rag over his body so she would not see anything. It stopped when she was five or six years old because he was uncomfortable about it. Defendant said nothing sexual happened.
Defendant also said he took showers with R.M. several times. Detective Gray advised defendant that R.M. said they never took showers together. Defendant then said he bathed R.M. when he was a child.
Convictions and sentence
After a jury trial, defendant was convicted as charged of committing the following offenses against C.M.: count I, continuous sexual abuse of a child under the age of 14 years, on or about August 1, 2004, through November 30, 2007 (Pen. Code, § 288.5, subd. (a)); and count II, oral copulation or sexual penetration with a child 10 years of age or younger, on or about December 1, 2007, through December 31, 2007 (Pen. Code, § 288.7, subd. (b)).
Defendant was also convicted of committing the following offenses against S.H., on or about February 7, 2003 through May 31, 2004: count III, oral copulation of a person under the age of 18 years (Pen. Code, § 288a, subd. (b)(1)); count IV, sexual penetration of a person under the age of 18 years (Pen. Code, § 289, subd. (h)); and count V, sodomy of a person under the age of 18 years (Pen. Code, §286, subd. (b)(1)).
Defendant was sentenced to the midterm of 12 years for count I; consecutive terms of eight months (one-third the midterms) each for counts III, IV, and V, for an aggregate determinate term of 14 years; plus 15 years to life on count II.
PROCEDURAL BACKGROUND
While defendant was charged with three felony counts for molesting S.H., he was not charged with unlawful sexual intercourse (Pen. Code, § 261.5) based on her resulting pregnancy when she was a minor, because the statute of limitations had expired for that offense. Instead, the People moved to introduce evidence about S.H.’s pregnancy, that she was a minor, and that defendant was the father of her child, as propensity evidence pursuant to section 1108. The People argued that evidence of “all categories of sexual acts between [S.H.] and defendant [are] admissible pursuant to [section] 1108 …. There can be no stronger evidence to corroborate that defendant had a sexual relationship with [S.H.] than that he is the father of her child, a child to whom she gave birth when she was 17 years-old. Further, this evidence is admissible on the issue of propensity to commit the charged sexual acts of oral copulation, digital penetration and sodomy with [S.H.].…”
Defendant did not file a formal opposition to this motion.
The court’s ruling
The court addressed the People’s evidentiary motion prior to trial. The prosecutor clarified that evidence of S.H.’s pregnancy and the birth of her child while a minor were relevant only to the charges based on the molestation of S.H., and not for the charges based on C.M.
In response, defense counsel asked the court to draft an instruction to clarify that such evidence was not relevant to the charges based on C.M. The court agreed to draft an instruction that both parties would agree to.
Defense counsel did not otherwise object to the People’s motion to introduce this evidence pursuant to section 1108.
Trial testimony
At trial, defense counsel did not object to C.M.’s testimony about S.H. and her child, or S.H.’s testimony about her relationship with defendant, and that he was the father of her child. Defense counsel only objected when S.H. testified that defendant married her because of the survivor benefits, and she divorced defendant because of abusiveness. The court held S.H.’s testimony on these points was relevant and probative, and overruled the objections.
As set forth above, defendant testified and admitted that he was the father of S.H.’s child. Defendant further testified that he did not know S.H. was a minor when she moved into his house and they started their sexual relationship, and he believed she was over 18 years old. Defendant claimed S.H. did not reveal she was a minor until she told defendant that she was pregnant.
Instructional conference
Just before the parties rested, the court conducted an instructional conference that was held off the record. When the court resumed proceedings, it went through the entirety of the instructions and asked the parties to interrupt if they had any objections. The court stated it was going to give CALCRIM No. 1191, “evidence of uncharged offense, sex offense.” Neither party objected.
After the court reviewed all the instructions, it again asked the parties if they had any objections “to the language or any of the instructions,” or if they wanted additional instructions. Neither party objected.
CALCRIM No. 1191
The court instructed the jury with the following modified version of CALCRIM No. 1191, without objection from either party.
“The People presented evidence that the defendant committed the crimes of unlawful sexual intercourse with a person under [the] age [of] 18 that was not charged in this case. This crime is defined for you in instruction 1071. [¶]
“You may consider this evidence only if the People have proven by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proven by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged offense, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit, and did commit oral copulation of a person under 18 … [S.H.], sexual penetration of a person under age 18, also [S.H.] and sodomy of a person under age 18, [S.H.], as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider, along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of oral copulation of a person under age 18, sexual penetration of a person under age 18, and sodomy of a person under age 18, all of those complaining witnesses being [S.H.]. The People must still prove each charge and allegation beyond a reasonable doubt. You must not consider this evidence to conclude that defendant was inclined to or did commit the crimes against [C.M.].” (Italics added.)
Defendant did not object to CALCRIM No. 1191 or any of the instructions.
DISCUSSION
I. Ineffective Assistance and the Admission of Propensity Evidence
Defendant contends that while S.H.’s testimony about her sexual relationship with defendant, her pregnancy, and the birth of their child was admissible, the court erroneously admitted the testimony as propensity evidence pursuant to section 1108.
Defendant further argues that CALCRIM No. 1191, on the jury’s consideration of the section 1108 evidence, also violated his due process rights because it diluted the People’s burden of proof to a preponderance of the evidence.
In raising these issues, defendant concedes that defense counsel did not object to the People’s motion, the court’s decision to allow the introduction of the evidence for this purpose, and CALJIC No. 1191.
Defendant also argues his trial counsel was prejudicially ineffective for failing to object to the People’s motion for the jury to consider S.H.’s testimony about these acts as propensity evidence pursuant to section 1108, because the evidence was irrelevant and highly prejudicial, and the jury could have relied on the evidence to convict him of the charges based on C.M. He also argues that this court may address the instructional issue because it affected his substantial rights, or as another instance of ineffective assistance.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214–215.)
A. Section 1108
“Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses [citation].…” (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Section 1108 “allows evidence of the defendant’s uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant’s disposition to commit such crimes.” (People v. Reliford (2003) 29 Cal.4th 1007, 1009.)
Section 1108 reflects a legislative determination that “ ‘evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of … section 1101.’ ” (People v. Britt (2002) 104 Cal.App.4th 500, 505–506, italics added in original; People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) “[T]he clear purpose of section 1108 is to permit the jury’s consideration of evidence of a defendant’s propensity to commit sexual offenses” to evaluate the credibility of the victim and the defendant. (People v. Villatoro (2012) 54 Cal.4th 1152, 1164; People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
“ ‘[S]ection 1108 passes constitutional muster if and only if section 352 preserves the accused’s right to be tried for the current offense. [Citation.] ‘Rather than admit[ting] or exclud[ing] every sex offense a defendant commits’ pursuant to section 1108, trial judges ‘must engage in a careful weighing process under section 352.’ [Citations.]” (People v. Jandres (2014) 226 Cal.App.4th 340, 355, original italics.) “The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant’s disposition to commit the charged sex offense or other relevant matters. [Citation.] The court’s ruling admitting the evidence is reviewed for abuse of discretion. [Citation.]” (People v. Cordova (2015) 62 Cal.4th 104, 132.)
B. Admission of Evidence About S.H.’s Pregnancy
Defendant first argues that defense counsel was prejudicially ineffective for failing to object because the admission of propensity evidence in general under section 1108 violated his federal and state constitutional rights to due process. In raising this argument, defendant acknowledges that the California Supreme Court has rejected similar due process claims (Falsetta, supra, 21 Cal.4th at pp. 916–918), but seeks to preserve the issue for further review. We are bound by the California Supreme Court’s holding that section 1108 does not violate due process. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Next, defendant argues that if defense counsel had objected to the People’s motion, the trial court would have excluded S.H.’s testimony about her pregnancy and his paternity under sections 1108 and 352. Defendant argues the only disputed issue at trial was whether he knew S.H. was a minor. Defendant contends that his due process rights were violated because the admission of this evidence under section 1108 was prejudicial and used to buttress the charged offenses under a diluted burden of proof.
As we have noted, defendant failed to object to this evidence and thus deprived the court of the opportunity to conduct a section 352 analysis. Nevertheless, the entirety of the record supports the court’s decision to grant the People’s motion to introduce evidence of S.H.’s pregnancy and defendant’s paternity under both sections 1108 and 352. Defendant was charged in counts III, IV, and V with committing sexual offenses against S.H. while she was a minor. Defendant testified he did not know S.H. was a minor, and that she appeared to be over 18 years old. Defendant further testified that S.H. did not reveal her age until she told him about her pregnancy. In contrast, S.H. testified that defendant always knew she was a minor, and he instructed S.H. to tell his friends that she was over 18 years old so they could still get drugs. S.H. further testified that when she told him about her pregnancy, he urged her to have an abortion because he was worried that he would get in trouble and lose custody of his children. S.H. ultimately promised defendant that she would not identify him as the child’s father so he would not get in trouble.
S.H.’s testimony on these matters was highly relevant under section 1108 to show that defendant was well aware of her age before and after the pregnancy, consistent with her testimony about their relationship and to refute his contrary testimony. The evidence was not unduly prejudicial and no more inflammatory than the entirety of the charged offenses, particularly his repeated sexual molestation of his own daughter.
C. CALCRIM No. 1191 and the Burden of Proof
Defendant further argues that the admission of the evidence under section 1108 violated his due process rights because it diluted the People’s burden of proving the elements of the charged offenses, particularly his knowledge of S.H.’s age, to just a preponderance of the evidence instead of beyond a reasonable doubt. Defendant acknowledges the jury was instructed with CALCRIM No. 1191 as to the differing burdens of proof, but argues the instruction was insufficient to properly instruct the jury on the People’s burden to prove the charged offenses beyond a reasonable doubt.
In raising these arguments, defendant again acknowledges that defense counsel failed to object to the instruction, but argues this court may review his contentions because the instruction affected his substantial rights (see, e.g., People v. Mason (2013) 218 Cal.App.4th 818, 823), and/or defense counsel was prejudicially ineffective.
Defendant further acknowledges that the California Supreme Court has approved this instruction as a proper statement of the law when evidence is introduced pursuant to section 1108, and states that he has raised the issue to preserve it for possible federal review.
As defendant concedes, the California Supreme Court has rejected the claim that section 1108 evidence reduces the People’s burden of proof, and approved similar instructional language. (Falsetta, supra, 21 Cal.4th at pp. 922–924; People v. Reliford, supra, 29 Cal.4th at p. 1016; see also People v. Cromp (2007) 153 Cal.App.4th 476, 480; People v. Reyes, supra, 160 Cal.App.4th at p. 253.)
DISPOSITION
The judgment is affirmed.



POOCHIGIAN, J.

WE CONCUR:


______________________
LEVY, Acting P.J.



PEÑA, J.