Filed 10/25/17 P. v. Gardner CA3
NOT TO BE PUBLISHED


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL OWEN GARDNER,

Defendant and Appellant.
C078441

(Super. Ct. No. 13F2048)






Defendant Michael Owen Gardner appeals from his convictions of continuous sexual abuse, oral copulation of a child, and child molestation. He asserts the following: (1) the trial court improperly admitted evidence of prior uncharged sex offenses under Evidence Code sections 1108 and 1101; (2) trial counsel rendered ineffective assistance when he solicited incriminating information from the victim and did not object when the victim on redirect testified to an undisclosed incident; (3) the trial court abused its discretion when it admitted evidence of peepholes in a bathroom door for the limited purpose of witness credibility; and (4) CALCRIM No. 1191, an instruction on the use of sexual propensity evidence, violates due process guarantees.
We disagree with defendant’s contentions and affirm the judgment.
FACTS
Prosecution’s case-in-chief
Defendant was born on April 29, 1962. He was a close friend of J.A. (mother) and helped her out with her children for a number of years. Every day for several years, he picked up her sons, S.V. and B.A., from day care in Palo Cedro, where he lived, and took them to her in Redding, approximately eight miles away. The boys frequently spent the night at defendant’s on weekends and other times when their mother was out of town. Mother depended on defendant to help with her children. Defendant was a father figure and a mentor to S.V. and B.A.
When B.A. was in the fourth and fifth grades, he went to defendant’s house every day after school. Defendant would be there. Sometimes S.V., S.V.’s friend J.P., and defendant’s son would also be there. They would do homework, hang out, play pool, or go swimming. B.A. was nine and 10 years old at the time, and S.V. was 16 and 17.
One summer night when B.A. was nine years old, he slept on defendant’s couch. Around 2:00 or 3:00 a.m., defendant came up to him, pulled down B.A.’s boxers and fondled his penis. Defendant was standing, but he was crouched over the couch. B.A. acted like he was asleep and did not do anything because he did not know what to do. After fondling B.A. for five or 10 minutes, defendant orally copulated him for five or 10 minutes. B.A. did not tell anyone about this incident because he was scared what people would think or what could happen.
Defendant molested B.A. again about one or two months later, after B.A. had started the fourth grade. When B.A. spent the night at defendant’s, he would sleep either on the couch or in defendant’s bedroom. Defendant suggested B.A. sleep in his room so that S.V., defendant’s son, and their friends would not mess with him while he slept. One night, after B.A. got into bed, defendant sat on the bed next to him and started rubbing B.A.’s penis over his boxers. He put his hands underneath B.A.’s boxers and continued rubbing his penis. He took B.A.’s boxer’s off and orally copulated him. Next, defendant exposed his own penis and said to B.A., “Well, I’ve played with yours; now you play with mine.” B.A. touched defendant’s erect penis. The incident lasted about 15 or 20 minutes. Afterward, B.A. felt weird. He did not tell anyone about this incident.
Defendant molested B.A. on numerous other occasions. B.A. could not estimate how many times defendant touched him after this second incident, but he knew it was more than 10 times. The conduct was usually the same; defendant would fondle and orally copulate B.A. and B.A. would fondle defendant. On one occasion, defendant ejaculated while B.A. was touching him.
Defendant took B.A. to the YMCA every weekday. He molested B.A. in the showers there about a dozen times. He touched B.A. only if no other people were in the locker room. B.A. kept a lookout on those occasions to make sure no one came in.
Defendant touched B.A.’s penis over his clothing on at least two occasions at B.A.’s house. The first time, defendant touched B.A. over his clothing while they were sitting on B.A.’s bed. The second time occurred in the middle of the kitchen. Defendant reached over and grabbed B.A.’s penis. B.A. grabbed defendant’s penis, and then S.V. came downstairs and they stopped.
The last time defendant molested B.A. was in late 2011 when B.A. was 11 years old. It happened at defendant’s home. Defendant touched B.A.’s penis and orally copulated him, and B.A. touched defendant.
Defendant molested B.A. so many times it was difficult to distinguish between one molest and the next. Defendant told him not to tell anyone about the incidents.
B.A. told his mother about the molestations in early 2012. He was very emotional, upset, embarrassed, and ashamed. Mother reported the abuse to the Shasta County Sheriff’s Office and the Redding Police Department.
Uncharged sex crimes
The prosecution introduced evidence of two uncharged sex offenses. For the first offense, S.V. testified he was using defendant’s cell phone to transfer pictures from it to his own phone when he saw two pictures of B.A. sleeping on defendant’s bed. In one photo, B.A.’s penis was hanging outside his underwear. In the other, taken at closer range, his penis was pulled up to lay flat against him. S.V. felt the second picture looked posed. When S.V. asked defendant about the pictures, defendant said he took them as a joke. S.V. accepted this explanation because he did not want to believe someone that close to him would be “that much of a monster or that wrong in the head.”
In the second incident, J.T., another boy who frequently stayed at defendant’s home, was playing a computer game there when he called defendant over to show him the game. The two started talking about girls and oral sex. J.T. was 12 years old at the time. Defendant told J.T. if he was ever curious about the actual feeling of oral sex, defendant was “there for [him].” J.T. was shocked and said “no.” It was common for defendant to tell J.T. he was there if J.T. needed to talk, but about this incident, J.T. testified, “I remember clearly that he did offer or make an offer” of oral sex.
 
Defense
Defendant’s testimony
Defendant testified in his own defense. He served in the military for 12 years. He was medically retired from the military due to a number of medical problems. He has, among other things, a nerve condition called reflex sympathetic dystrophy, which renders him unable to have an erection. He has had the condition for 20 years. He has not engaged in sexual activities since 2005 and has no sexual desire. He is not sexually attracted to men.
Defendant denied ever touching B.A. in an inappropriate manner. He never asked B.A., S.V., or any other boy to come to his house. They came to his home when they asked him.
S.V. moved in to defendant’s house in September 2010 at the age of 17. His friend J.P. moved in soon after. The two shared a bedroom and later paid rent. S.V. moved out in December 2011. When he left, he owed defendant $1,100, and he had not paid the debt as of trial.
As for the uncharged offenses, defendant denied having pictures of B.A. on his phone as S.V. described, and he denied offering oral sex to J.T.
Tami Gomes
Tami Gomes knew B.A.’s mother for 16 years and B.A. for all of his life. In 2013, she asked B.A. if anything inappropriate happened between him and defendant when he was younger. B.A. said no. One month later, B.A. told Gomes he had to tell her nothing happened because the case was under investigation.
 
Dr. Martin Williams
Dr. Martin Williams, a licensed psychologist, administered the Psychopathy Checklist Revised (PCL-R) test and the Static 99-R test to defendant. The PCL-R test measures a person’s antisocial or criminal tendencies. The Static 99-R test is used to determine whether a person has the properties of a sex criminal. From these tests, reviewing defendant’s files, and interviewing defendant, Dr. Williams concluded defendant did not have the properties of a psychopath, meaning a violent and criminal type of personality, and he did not have the properties of a sex offender or have deviant sexual interests.
Dr. Williams acknowledged the Static 99-R test was developed to evaluate individuals who have already been convicted of a sex offense. It was not developed to determine whether someone has committed a sex offense. Dr. Williams also agreed there are many individuals who commit sex offenses who are not psychopaths.
Dr. Williams was aware of grooming, a process by which an adult draws a child into a sexual relationship by earning the child’s trust and possibly the trust of the child’s parents. The adult will put him or herself in situations where the child is isolated with them and eventually initiate sexual conduct. The grooming process is a substitute for the use of force or fear, and it allows the adult to control the relationship and keep the sexual activity secret.
Rebuttal
S.V. testified he moved out of defendant’s home because he saw defendant looking through peepholes in the bathroom door. Defendant stood on his tippy toes and was leaning close to the door. Defendant was missing a leg, but he had no problem standing there. He placed his hands high up on the door frame. After defendant left, S.V. and J.P. stood on a footstool next to the door. S.V. saw two peepholes; through one he saw the shower, and through the other he saw the toilet. After seeing this, he and J.P. started packing their things. They moved out three or four days later. S.V. moved out not because he did not want to pay rent, but because he felt unsafe and uncomfortable.
Defendant earlier testified he did not learn of the peepholes until S.V. told him in a conversation on Facebook. The holes were higher than defendant’s head. Defendant patched them. He did not put the holes in the door and had no idea who did.
JUDGMENT AND SENTENCE
A jury convicted defendant of three counts of child molestation (Pen. Code, § 288, subd. (a)); oral copulation of a child under 10 years of age (Pen. Code, § 288.7, subd. (b)); and continuous sexual abuse (Pen. Code, § 288.5). The jury also found true allegations of substantial sexual contact as an enhancement on the child molest counts (Pen. Code, § 1203.066, subd. (a)(8)).
The trial court sentenced defendant to state prison for a term totaling 22 years plus 15 years to life, calculated as follows: the upper term of 16 years on the continuous sexual abuse count, plus a consecutive two years (one-third the midterm) for each of the three molest counts, plus 15 years to life for the oral copulation count.
DISCUSSION
I
Admission of Uncharged Sex Offense Evidence
The trial court admitted the uncharged offense evidence—S.V.’s testimony of seeing photos of B.A.’s penis on defendant’s cell phone and J.T.’s testimony of defendant’s offer to be “there” if he wanted to know how oral sex felt—under Evidence Code section 1101, subdivision (b), as evidence of intent and absence of mistake, and Evidence Code section 1108 as propensity evidence. Defendant contends the trial court erred in admitting the evidence because (1) section 1108 is unconstitutional; (2) there was insufficient evidence to establish the conduct occurred or constituted a sexual offense; (3) the evidence was unduly prejudicial under section 352; and (4) the evidence was inadmissible under section 1101. We conclude the trial court did not err admitting the evidence under section 1108, and, as a result, do not address defendant’s argument under section 1101.
A. Constitutionality of section 1108
Section 1108 permits evidence of a defendant’s uncharged sex offenses to be introduced in a sex offense trial so long as the evidence is not unduly prejudicial under section 352. (§ 1108, subd. (a).) The uncharged offense must constitute a sex offense specified in the statute. (§ 1108, subd. (d)(1).)
Defendant contends section 1108 violates his due process rights. The California Supreme Court rejected his argument in People v. Falsetta (1999) 21 Cal.4th 903, 915-918), and its decision is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Sufficiency of evidence supporting uncharged offenses
Defendant contends insufficient evidence supports the trial court’s determinations that the uncharged acts occurred and that they constituted one of the statutorily enumerated sexual offenses. We disagree.
“[T]he admissibility of uncharged conduct pursuant to section 1108 turns on the existence of a preliminary fact—namely, that the uncharged conduct constitutes a statutorily-enumerated ‘sexual offense.’ [Citation.] The trial court must make a preliminary determination of whether the proffered evidence is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated offense. [Citations.] ‘The court should exclude the proffered evidence only if the “showing of preliminary facts is too weak to support a favorable determination by the jury.” ’ [Citation.] ‘The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion.’ [Citation.] Accordingly, we review the trial court’s determination of this preliminary fact under the abuse of discretion standard.” (People v. Jandres (2014) 226 Cal.App.4th 340, 353.)
1. Cell phone photos
The trial court determined sufficient evidence established defendant violated Penal Code section 311.11, possession or control of obscene matter, by photographing B.A.’s penis with his cell phone while the boy slept on defendant’s bed.
Defendant contends insufficient evidence established the uncharged act constituted a violation of Penal Code section 311.11. He asserts the prosecution did not establish with sufficient evidence he took the photos or knew of their existence on his cell phone. Although S.V. testified he saw the photos, he did not forward them to himself or his mother. Those omissions, defendant contends, “eviscerated” S.V.’s credibility.
We conclude the trial court did not abuse its discretion in finding sufficient evidence of the uncharged act. Penal Code section 311.11 is a sexual offense enumerated in section 1108. It prohibits anyone from knowingly possessing or controlling any photograph depicting a child under 18 years of age engaging in sexual conduct. (Pen. Code, § 311.11, subd. (a).) For purposes of the statute, sexual conduct includes exhibiting the genitals for purpose of the viewer’s sexual stimulation. (Pen. Code, §§ 311.11, subd. (a); 311.4, subd. (d)(1).)
S.V. testified he had access to defendant’s phone, and while using the phone, he saw two photos of B.A. Both depicted B.A. sleeping on defendant’s bed with his penis exposed. In one of them, the organ appeared to have been posed. S.V.’s testimony was sufficient evidence on which the trial court could rationally determine a jury could find by a preponderance of the evidence that defendant photographed B.A.’s penis for his sexual stimulation and was thus guilty of violating Penal Code section 311.11.
Defendant asserts the testimony should not have been admitted because S.V. was not credible. The trial court found otherwise for purposes of admitting the evidence, and nothing in the record indicates the court’s finding was arbitrary or capricious. Here, the evidence was sufficient for the court to determine a jury, hearing this evidence in light of defendant’s denial of guilt, could find defendant committed the act by a preponderance of the evidence. The court did not abuse its discretion in making this finding.
2. Offer to orally copulate J.T.
The trial court determined defendant’s statement to J.T. that he would be there for him if he wanted to know the feeling of oral sex qualified as annoying or molesting a child in violation of Penal Code section 647.6, subdivision (a). Defendant contends his comment to J.T. was too vague to constitute a violation of Penal Code section 647.6, subdivision (a). He said only that he would be “there” for J.T., which was susceptible to mean he would be there as a confidant.
Defendant did not object in the trial court to admitting the evidence on this basis, and has thereby forfeited this issue. (See People v. Fuiava (2012) 53 Cal.4th 622, 671.)
Defendant asserts his trial counsel rendered ineffective assistance by not objecting to the evidence as overly vague. We disagree. Counsel did not render deficient performance by not objecting, as the trial court would have denied the objection. Sufficient evidence established the uncharged act was a violation of Penal Code section 647.6, subdivision (a).
To establish relief from ineffective assistance of counsel, defendant must show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates; and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) We will find deficient performance only where there simply could be no satisfactory explanation for counsel’s action. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Penal Code section 647.6, subdivision (a) is one of the sexual offenses enumerated in Evidence Code section 1108. (§ 1108, subd. (d)(1)(A).) It prohibits annoying or molesting a child under the age of 18. There are four elements to the offense: (1) the defendant’s conduct was directed at a child; (2) a normal person would, without hesitation, have been disturbed, irritated, offended, or injured by the conduct; (3) the conduct was motivated by an unnatural or abnormal sexual interest in the child; and (4) the child was under 18. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1161.)
The trial court rationally concluded there was sufficient evidence for the jury to find by a preponderance of the evidence that defendant offered J.T. oral sex. J.T. testified defendant told him if he was ever curious about the actual feeling of oral sex, defendant was “there for [him].” J.T. was shocked and said “no.” This was sufficient evidence to support the court’s preliminary finding under Penal Code section 647.6, subdivision (a).
Defendant contends his statement was too vague and was susceptible to meaning he was there for J.T. as a confidant. J.T. acknowledged at trial he could have possibly misinterpreted defendant’s comment because it happened so long before trial. Defendant said, “I’m here for you to talk,” many times to J.T., but when asked if he could have remembered defendant’s offer incorrectly because he was used to hearing that phrase so often, J.T. said, “No, . . . I remember clearly that he did offer or make an offer.” Defendant’s statement was not too vague for a jury to assign fault.
In light of this evidentiary showing, we have no doubt the trial court would have overruled any objection defense counsel would have made against admitting the evidence on the basis his statement was overly vague. Counsel’s decision not to object was thus not deficient performance.
C. Prejudice under section 352
Defendant contends the uncharged act evidence admitted under section 1108 was unduly prejudicial under section 352. He argues the evidence’s prejudicial effect outweighed its probative value because it was inflammatory and too dissimilar to the charged offenses, and because he was never convicted of the uncharged offenses. We disagree with his contention.
“ ‘[S]ection 1108 preserves the trial court’s discretion to exclude evidence under . . . section 352 if its prejudicial effect substantially outweighs its probative value. [Citations.] In deciding whether to exclude evidence of another sexual offense under section 1108, “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.” (People v. Falsetta, supra, [21 Cal.4th] at p. 917.) Like any ruling under section 352, the trial court’s ruling admitting evidence under section 1108 is subject to review for abuse of discretion.’ (People v. Story [(2009)] 45 Cal.4th [1282,] 1294-1295.)” (People v. Avila (2014) 59 Cal.4th 496, 515.)
The trial court did not abuse its discretion in admitting the uncharged offense evidence. As the court found, S.V.’s testimony of the photographs was probative because it showed defendant’s intent and his access to the victims and, because the photos depicted B.A. on defendant’s bed, corroborated B.A.’s testimony that some of the molestations occurred on defendant’s bed. Similarly, defendant’s offer to J.T. was probative because it corroborated defendant’s behavior or orally copulating similarly aged boys.
The evidence’s prejudicial impact did not substantially outweigh its probative value. The uncharged acts were less inflammatory than the charged crimes. They were not remote in time. They shared some common aspects: all occurred at defendant’s home, all were directed toward young boys, and all were initiated by defendant. It took an insignificant time for the prosecution to introduce and the defendant to rebut the evidence. The evidence did not confuse the jury or distract it from its primary purpose. In addition, the trial court instructed the jury that if it found the uncharged acts true, it could use them only as one factor among all the evidence in determining defendant’s guilt. Under these circumstances, we cannot conclude the trial court abused its discretion in admitting the uncharged offense evidence.
II
Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance when he (1) solicited from B.A. testimony of a previously unknown molestation that was inherently prejudicial, and (2) failed to object or move for mistrial upon the introduction of a previously undisclosed sexual offense for which he had not received prior notice as required in section 1108. We conclude defendant suffered no prejudice even if counsel performed deficiently.
A. Background information
During cross-examination, defense counsel questioned B.A. about his contacting defendant in July 2012 after he ran away from home and after he had reported the molestations. Counsel asked if any touchings occurred during that time. B.A. reported one. They were seated in defendant’s car, and defendant “reached over to see if I had gotten any bigger.” B.A. did not know why he never mentioned this to anyone before then.
On redirect examination, the prosecutor asked B.A. if he had been honest in his testimony. B.A. hesitated and said there was one thing he remembered. When he was in the fifth grade, he and a friend were at defendant’s home watching pornography with defendant. Defendant brought out a tape measure and measured the boys’ penises to see whose was bigger. Defense counsel did not object.
B. Analysis
Assuming for purposes of argument only that counsel’s performance was deficient, we find his actions did not prejudice defendant. To establish prejudice, defendant must show “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.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)
There is no reasonable probability defendant would have received a more favorable verdict had counsel not asked B.A. about another touching and had he objected to B.A.’s testimony about the measuring incident. B.A. testified to numerous incidents of defendant molesting him by fondling him or orally copulating him, so many that B.A. could not count them all or distinguish between them. Although there were inconsistencies in B.A.’s testimony about whether his underwear was on or off during the first molestation, and B.A. said defendant crouched over him while defendant said he could not crouch, there was also testimony from the detective that interviewed B.A., not contradicted by defendant, that it was common for child sex abuse victims to recall details as time goes on and to struggle to differentiate between separate sex crimes. It is not reasonably probable that not introducing these two incidents, less severe than all of the other incidents about which B.A. testified, would have resulted in a more favorable verdict.
III
Admission of Peephole Testimony
Defendant contends the trial court erred when it admitted S.V.’s testimony on rebuttal about seeing defendant look through peepholes in the bathroom door. He argues he did not “open the door” in his testimony to the peephole testimony. Even if he did, he asserts the evidence was irrelevant and unduly prejudicial.
The trial court admitted the evidence solely for the jury to evaluate witness credibility. The court did not abuse its discretion in doing so.
 
A. Background information
Before trial, the prosecution filed an in limine motion to introduce S.V.’s testimony about the peepholes to show defendant’s intent and sexual nature. The trial court denied the motion under section 352 because there was no evidence defendant was looking at B.A. or another young boy through the peephole. There also was too much risk the jury could convict defendant based on the peepholes where there was no clear connection between them and B.A.
During his testimony, defendant stated he had a fight with B.A.’s mother in October 2011, and she did not allow B.A. to come to his house after that. He next stated S.V. moved out of his house in December 2011, and at that time S.V. owed defendant $1,100. S.V. had not paid him as of the day of trial.
Outside the jury’s presence, the prosecutor moved to admit the peephole testimony to rehabilitate S.V.’s credibility. The court agreed defendant’s testimony left the jury with the impression S.V. moved out of defendant’s house because he owed defendant money, when in fact he left because he saw defendant looking through the peepholes. The court convened a section 402 hearing, and S.V. testified he moved out because he discovered the two peepholes in the bathroom door after seeing defendant standing right in front of the door. S.V. believed J.P. was in the bathroom while defendant was looking through the holes.
After the hearing, the court ruled the evidence was admissible for the limited purpose of rehabilitating S.V.’s credibility. Defendant opened the door to this testimony by suggesting S.V. moved out for a reason other than the victim’s allegations. He also placed S.V.’s credibility in question. Evidence corroborating S.V.’s reason for moving out of defendant’s home was relevant.
S.V. testified in court concerning the peepholes as summarized above. Immediately after he testified, the court instructed the jury to consider the evidence regarding the bathroom door “for the limited purpose of determining the credibility of the witnesses who testified about it. This evidence and testimony should not be used for any other purposes than determining the credibility of the witnesses.”
The court repeated this instruction during predeliberation instructions. In their closing arguments, the prosecutor and defense counsel reminded the jury the peephole evidence was admitted solely for credibility purposes.
B. Analysis
“ ‘A defendant who takes the stand to testify in his own behalf waives the privilege against self-incrimination to the extent of the scope of relevant cross-examination. [Citations.] “It matters not that the defendant’s answer on cross-examination might tend to establish his guilt of a collateral offense for which he could still be prosecuted.” ’ [Citations.] ‘None of [the] fundamental principles [underlying the rule precluding the prosecution from cross-examining a testifying defendant beyond the scope of direct examination, upon the case generally] . . . imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.’ [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 72, bracketed text in original.)
“Rebuttal evidence is relevant and thus admissible if it ‘tend[s] to disprove a fact of consequence on which the defendant has introduced evidence.’ [Citation.] The trial court is vested with broad discretion in determining the admissibility of evidence in rebuttal. [Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 936.) We review the trial court’s admission of rebuttal evidence for an abuse of discretion. (Id. at p. 937.)
The court did not abuse its discretion admitting the peephole evidence. First, the evidence was relevant, as it went to S.V.’s credibility. Under direct examination, S.V. admitted he had been convicted of petty theft, forgery, and providing false information to a police officer. Under cross-examination, he agreed his offenses involved honesty. Defendant’s testimony that S.V. still owed him money for rent further attacked his credibility and could have left the jury with the impression S.V. moved out of defendant’s home for that reason. S.V.’s testimony was relevant to rehabilitating his credibility and rebutting defendant’s implied assertion.
Second, the court did not abuse its discretion when it determined the evidence was not unduly prejudicial under section 352. The evidence was probative regarding S.V.’s credibility. Its prejudicial impact was limited by the court instructing the jury twice to consider the evidence only for that purpose, and both the prosecutor and defense counsel echoed those instructions to the jury. We presume jurors follow judicial instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852), and there is no evidence they did not in this instance.
Third, even if the court erred in admitting the evidence, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) It is not reasonably probable defendant would have obtained a more favorable verdict had the court not admitted the peephole evidence. B.A. clearly identified the abuse he suffered from defendant on multiple occasions, and the uncharged sex crime evidence indicated defendant had a propensity to commit sex crimes with young boys. Under these circumstances, it is unlikely the jury would have decided differently had it not heard S.V.’s testimony about the peepholes.
IV
CALCRIM No. 1191
CALCRIM No. 1191 authorizes a jury to conclude from uncharged sex offense evidence that the defendant was disposed or inclined to commit the charged offenses, but a jury may do so only if the prosecution proves the uncharged offenses by a preponderance of the evidence. The instruction also told the jury its conclusion on the uncharged offenses was not sufficient by itself to convict defendant of the charged offenses.
Defendant contends CALCRIM No. 1191 violates his due process. He did not object to the instruction, but, nevertheless, his contention is without merit. “As defendant acknowledges, his contention that the language of this instruction violated his due process rights was rejected by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007. Although the instruction considered in Reliford was the older CALJIC No. 2.50.01, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant's contention that the instruction violated his due process rights.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
DISPOSITION
The judgment is affirmed.



NICHOLSON , J.



We concur:



BLEASE , Acting P. J.




ROBIE , J.