Filed 1/29/18 P. v. Oliveros CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Sergio Oliveros appeals from a judgment entered after a jury convicted him of 12 counts of oral copulation or digital penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b))[1] and five counts of lewd or lascivious acts against a child under 14 years of age (§ 288, subd. (a)). After defendant admitted as true allegations of prior convictions, the trial court sentenced him to an aggregate term of 517 years to life.

Defendant contends the trial court abused its discretion in admitting evidence of uncharged sexual offenses. He also asserts the court committed instructional error by incorrectly describing the burden of proof; alternatively, he claims ineffective assistance of counsel for counsel’s failure to object to the challenged instruction. We affirm.

Background

The Reported Molestation and Charges

In December 2013, then 15-year-old A.D. and 13-year-old I.D. told their mother (Mother) that defendant, Mother’s husband and the girls’ stepfather, had molested them. They were both crying, and Mother stated she was in “shock,” and her “whole world crumbled.” Mother spoke with the girls’ father and the next day went to the police department. Mother, A.D., and I.D. spoke with Detective William Beck, who set up an interview with the girls at the Keller Center.

In a conversation with Mother that took place in February 2014, Detective Beck told her defendant “was looking at a life sentence,” and Mother, in turn, relayed that information to the girls. A week later, A.D. tried to recant, fearing her brother “would blame [her] for not having his dad in his life.” Beck told A.D. that defendant would get five to seven years through a plea bargain in an effort to get her to tell the truth. After talking to Beck longer, she realized she needed “to be truthful” and continued to claim defendant had inappropriately touched her over the course of several years.

Defendant was charged by information with 12 counts of oral copulation or sexual penetration of a child who is 10 years of age or younger (§ 288.7, subd. (b); counts 1–12); five counts of lewd or lascivious acts with a child under 14 years of age (§ 288, subd. (a); counts 13–17); and one count of possession of child pornography (§ 311.11, subd. (a); count 18).[2] It was further alleged defendant had suffered four prior serious felony convictions, a prior strike offense and served two prior prison terms. (§§ 667, subd. (a); 667.5, subds. (a) & (c)(6); 1170.12, subd. (c)(1).) After a preliminary hearing, defendant was held to answer and the matter was set for jury trial.

The Pre-Trial Ruling on Other Acts of Molestation

Before trial, the People moved to allow testimony by Cynthia Doe about defendant’s prior sexual offenses. In 1996, defendant was arrested for statutory rape and sexual abuse of a child. Cynthia was the niece of defendant’s then girlfriend. Cynthia was nine years old when defendant started molesting her, where he would sneak into the room where she slept, after everyone else was asleep. Cynthia stated defendant would rub her breasts (over and under her clothing), digitally penetrate her vagina and rub his penis against her. The People proffered this evidence under Evidence Code sections 1101, subdivision (b) and 1108 to show defendant’s propensity to commit sex offenses, his knowledge and his conduct constituted a crime, he had the intent to commit the crime, he was not mistaken about the victims’ ages, and his pattern of conduct had been repeated in the past. At the hearing on its motion, the prosecution stated Cynthia would testify as to her age at the time of the molestation and that defendant had given her genital warts.

Defendant countered that the evidence was unduly inflammatory, his 1996 conviction was remote in time and did not establish a pattern of behavior, there would be “considerable time wasted if forced to litigate these old priors,” and the probative value was outweighed by the substantial prejudice that admission of the evidence would cause.

The trial court found the “complaining witnesses in this case are generally of the same age that Cynthia was when she was abused by the defendant. She was 11 years old. The complaining witnesses here are between the ages of 7 and 11 during a time of ongoing allegations . . . just as Cynthia’s abuse was an ongoing pattern of molestation. . . . I recognize, as I said, there is not an allegation that anyone has heard yet that he actually accomplished an act of sexual intercourse, but he at least on one occasion simulated an act of intercourse with one of the complaining witnesses. The other conduct is very similar to what he engaged in with Cynthia Doe. [¶] Both of these complaining witnesses were, like Cynthia Doe, in a familial relationship to the defendant such that he had access to them by virtue of dating their mother in this case. He slept in the same home as they did. Just as he would have been in the same home with Cynthia . . . because of his dating relationship with her relative.” The court went on to state that these similarities demonstrate “a common plan or scheme on the part of the defendant to take advantage sexually of very young girls with whom he has some sort of familial connection on multiple occasions.” The court concluded the conviction was not too remote in time, Cynthia’s testimony would not be “any more inflammatory” than what the complaining witnesses were testifying to, and her testimony would not confuse the issues in the case at hand. The court ruled that “[l]ooking at all of those factors and what the mandate is under [Evidence Code section] 1108, there is certainly a sufficient basis under both [Evidence Code sections] 1101(b) and 1108 to allow Cynthia to testify to the abuse that she suffered at the hands of [defendant].”

The Trial Testimony of the Victims

At trial, the jury heard from Mother, A.D. and I.D, and Cynthia. Mother had met defendant in December 2006, when the girls were eight and six years old. The girls were living full time with their father, but visiting Mother three times during the week and every other weekend.

After their dad moved away, the girls moved in with their grandparents and Mother and defendant would come over and stay. When the girls first met defendant, they liked him, as he would “take us all out to eat as a family, buy me some clothes for school,” draw pictures for Mother and buy her flowers.

A.D. stated the first time defendant touched her was at her grandparents’ house, when she, Mother, sister, and defendant were watching a movie. When Mother and I.D. left the room for about five to 10 minutes, defendant “hopped off the bed and locked the door and he came back to the bed where I was and he started to get closer to me, and then he started to feel up beneath my shirt on my breast. And in that moment, I was really frozen. I didn’t know how to react to it. At the time I was 8 years old. And when they came back up, he hopped up really fast to go and unlock the door and let them in.”

About two to three weeks after the first incident, A.D. was upstairs by herself watching a T.V. show and wearing her pajamas. Defendant came into her room and “started to feel up on my breasts again,” for approximately a minute. His hands were inside her pajamas and she felt “[v]ery uncomfortable.”

After her grandparents decided to move, Mother, A.D., and I.D. moved in with defendant’s mother and brother in San Jose. At that point, A.D. was nine years old. Defendant’s brother and mother had their own separate bedrooms, and defendant shared a bedroom with Mother. A.D. and I.D. slept in the living room on a pull out couch. Mother had sleep apnea and wore a mask at night to help her breathe. She was also a very heavy sleeper. A.D. stated defendant would leave his room, pick her up off the bed and put her on a reclining chair in the living room. There, he “started to try to kiss” her and “then he went on to feel my shirt and touch my breasts.” He also “stuck his middle finger inside the hole of my vagina. And at this point he had taken my pants off and he put his mouth on my vagina and started licking me, and then continued to ask me if I could feel the tingle.” She mentioned that defendant had hangnails and “it hurt really bad every time he would stick his fingers inside me.” Defendant would “lick [her] vagina while he had his fingers inside” of her. She said this behavior went on “every other night or every other two nights” the entire time she lived in San Jose, “at least” 18 to 20 times. “Quite a few times,” defendant would also take her hand and “guide it to where his penis [was] and tried to have [her] feel on his penis while his clothes were on.”

While A.D. was still nine years old, the family moved to Sacramento. A.D. and I.D. shared a bedroom, and Mother and defendant shared another bedroom. Defendant continued to visit the girls’ bedroom “[a]bout every other night.” The sisters had separate beds though there was no space between them. Defendant would enter the bedroom, get on his knees on A.D.’s bed and “then he would first reach up my shirt,” and sometimes he would “put his mouth on my breasts,” “penetrate me with his fingers,” and “put his mouth on her vagina and lick.” A few times, he would again ask her, “ ‘Do you feel the tingle?’ ” And one time he told her she “tasted almost as good as [her] mom.” He would usually switch between his middle and index finger when penetrating her, but one time she believed he tried to put them both inside of her “but he couldn’t.” He also once again had her put her hand on his shorts where his penis was. She stated all of these things happened about 10 to 15 times while in Sacramento.

A.D. also recounted incidents that happened during the day. Once, while at his mother’s house, defendant brought A.D. to his bed, put her on her hands and knees with her pants off. He then rubbed her vagina “from the back with his fingers,” and while she was crouched she “felt something different, it didn’t feel like his hands anymore, so I put my head in between my legs to look and it looked like his penis. And at the time I didn’t know it was a condom because it felt really rubbery. I believe that he had a condom on and he started to stroke my vagina from the back, but he didn’t put it inside the hole, he was just sliding his penis on me.”

In a second daytime incident, A.D. was lying on her stomach and defendant had been “playing” with her butt, “shaking” it, and when she tried to get up he pushed her back down and “continued to do it, and then fingered” her vagina afterwards. He also walked in on her while she was showering on one occasion, stating he was looking for a cotton swab. However, “there was another bathroom where he could have grabbed” what he needed. A.D. tried to put a stop to defendant’s touching on her tenth birthday, when he came into her room and tried to get on top of her, and as he was trying to get into her pants she “kicked him to get him off of [her].” A.D. also recalled isolated incidents of molestation in 2011 or 2012, after her tenth birthday.

I.D. stated the first time defendant touched her was when she was six years old and she was watching a movie with him and her sister on a bed. When she went to reach for the remote, defendant grabbed her hand “and placed it over his private area,” and she remembered it was inside his clothing and felt “slimy.” I.D., in turn, stated defendant molested her from the time she was six until she was eight years old. He would kiss her, and “[c]ountless times,” he would come in to her room at night and “take his hand and put it in [her] pants” underneath her underwear, while she pretended to be asleep. She knew who it was because “his hands were very rough.” Most of the incidents happened at night, however, a few happened during the day. I.D. remembered defendant would kiss her during the day when Mother would run errands, and one time he touched her breasts above her clothing.

In August 2008, defendant was arrested for failure to register as a sex offender when the family moved. When she met defendant, Mother had no idea he was a registered sex offender, and defendant told her only that he had “done some time for gun sales, or he had a gun charge.” By that point, Mother had given birth to their son. Defendant’s mother and sister told Mother defendant had been “wrongfully convicted” and had taken a plea of six years. Mother asked the girls if defendant had ever done anything to them, and they both said “[n]o.” Three months later, Mother married defendant while he was incarcerated. She also met with defendant’s attorney, who asked her to get as many character letters as possible, and she asked her girls to write letters on his behalf.

A.D. remembered writing a letter with her sister, at Mother’s request, “to give [defendant] a good word so he could get released early,” but did not remember exactly what she wrote. Defendant remained in jail for almost a year. After he was released from prison, defendant’s “whole demeanor changed,” and “he started getting very aggressive and snappy” with Mother. They constantly yelled at each other, and “then the yelling turned into him hitting” Mother. At one point, he pulled a knife on Mother.

Around November 2013, A.D. went to a sexual abuse presentation at her high school. After finding out the speaker was not a mandated reporter, she talked about what happened to her when she was younger. The speaker encouraged A.D. to come forward. Around that same time, A.D. began to suspect defendant had abused her sister, so she pulled I.D. aside and asked if defendant had done anything to her as well. After confirming he had, A.D. “felt more confident in coming forward.” I.D. was “surprised” defendant had done the same thing to A.D. and stated she had “a lot of anger towards him.”

Cynthia Doe testified she met defendant when she was nine or 10 years old, because he was dating her aunt who also had a daughter with defendant. Cynthia would stay with her aunt a couple of nights per week. The first time she remembered defendant touching her she was nine years old and sleeping over her aunt’s house. When she “woke up, he was on top of [her].” She stated this happened approximately 10 times, which sometimes occurred at her aunt’s house, but other times, at her grandmother’s house. Defendant touched her breasts over her clothes and touched her vagina over and under her clothing. Defendant would stick one, sometimes two fingers inside her vagina, which was painful. He also “put his penis inside” her vagina about 10 times, the first couple of times wearing a condom, but otherwise abstaining and sometimes ejaculating. Defendant would also kiss her lips and “put[] his mouth on [her] vagina.” At some point, defendant’s conduct was reported to police after Cynthia contracted genital warts. The last time defendant touched her she was 11 years old.

The jury also heard from Anthony Urquiza, a psychologist, who testified as an expert in child sexual abuse accommodation syndrome, and Frank Daley, who testified as a defense expert on interrogation and interviewing witnesses.

The jury found defendant guilty on all counts but one. After admitting as true the allegations pertaining to his prior convictions, the trial court sentenced him to an aggregated term of 517 years to life.

Discussion

The Prior Sex Offenses Evidence

Evidence Code section 1108, an exception to the general prohibition against the admission of character evidence, allows the admission of evidence of prior sex offenses in a sex crime case. (See Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 920 (Falsetta) [such evidence is relevant circumstantial evidence the defendant committed the charged sex crimes].) However, before admitting such evidence, the trial court must conduct an analysis under Evidence Code section 352. (See Evid. Code, § 1108, subd. (a); Falsetta, at p. 916.) The judicial safeguard of an Evidence Code section 352 analysis prevents unfair misuse of such “propensity” evidence. (Falsetta, at pp. 917–918.)

Defendant contends the trial court abused its discretion under Evidence Code section 352 and violated his due process rights in admitting Cynthia Doe’s testimony. Specifically, he asserts the prior offense “differed so markedly from the present offense with respect to the magnitude of the sexual abuse—involving repeated unprotected intercourse and a sexually transmitted disease—that it gave rise to undue prejudice.”

“To be admissible under Evidence Code section 1108, ‘the probative value of the evidence of uncharged crimes “must be substantial and not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.” [Citations.]’ [Citation.] ‘The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.’ ” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)

As with evidentiary rulings admitting or denying evidence generally, we review the challenged ruling admitting evidence under Evidence Code section 1108 for abuse of discretion. Thus, we review the record to determine whether the ruling falls outside the bounds of reason. (See People v. Wesson (2006) 138 Cal.App.4th 959, 969.) We see no abuse of discretion in the trial court’s assessment of the challenged evidence.

Defense counsel’s strategy was that A.D. and I.D. had concocted their story in an effort to protect Mother from further abuse by defendant. Accordingly, evidence of prior acts of molestation by defendant was highly relevant to the jury’s assessment of the credibility of A.D. and I.D. and whether their accounts of molestation were true. (See Falsetta, supra, 21 Cal.4th at p. 912.)

While defendant asserts his prior sex crimes against Cynthia were “markedly” different, because here A.D. and I.D. made no claims defendant forced them to engage in actual sexual intercourse and made no claim they contracted genital warts, he disregards the other similarities between defendant’s molestation of A.D. and I.D, and of Cynthia. Indeed, as the trial court observed, the sexual abuse in the two cases is “strikingly similar.” All three victims were girls of around the same age. Defendant gained access to them in a similar manner, “by virtue of dating” women with whom the girls regularly stayed. Defendant’s pattern of behavior was the same, going into their rooms at night, and the molestation escalating in severity, over multiple occasions and multiple years. Further, on at least one occasion, defendant simulated intercourse with A.D., and all three girls complained of pain when defendant digitally penetrated them.

Under Evidence Code section 1108, “there is no requirement that the charged and uncharged offenses be so similar that evidence of the prior acts would be admissible under [Evidence Code] section 1101. If such strict similarities were required, ‘[Evidence Code] section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.’ [Citation.] Nevertheless, it follows that uncharged prior offenses that are very similar in nature to the charged crime logically will have more probative value in proving propensity to commit the charged offense.” (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.)

The remaining Evidence Code section 352 factors also weighed heavily in favor of admission. Although defendant asserts the trial court failed to “sufficiently account,” for the inflammatory nature of the other offenses, the court determined Cynthia’s testimony was no more inflammatory than that of the complaining witnesses. While the testimony was certainly prejudicial, it was not unduly so. As the court determined “f all of the testimony is believed, I think it has an equal impact on the listener, and I don’t believe that the triers of fact would be incapable of utilizing their reason and separating the prior conduct from the conduct that is charged here in making a determination as to the credibility and whether or not they believe the charges in this case have been proved.” We agree. “ ‘ “Undue prejudice” refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis. . . .’ ” ([i]People v. Hollie, supra, 180 Cal.App.4th at pp. 1276–1277.)

In sum, the trial court acted well within its discretion in admitting the evidence of prior sex crimes against Cynthia under Evidence Code section 1108.[3]

CALCRIM No. 1191

Although he made no objection below, defendant now contends the trial court erred in giving a modified version of CALCRIM No. 1191. Specifically, he claims the court “misdescribed” the burden of proof as to the charged crimes. He alternatively claims, if this issue has been forfeited by his failure to object, his attorney rendered ineffective assistance of counsel.

As defendant has correctly anticipated, he forfeited this issue on appeal by failing to object to the instruction. (People v. Virgil (2011) 51 Cal.4th 1210, 1260; People v. Battle (2011) 198 Cal.App.4th 50, 64.)

Nor has he established ineffective assistance of counsel, as the trial court did not commit prejudicial error in giving the challenged instruction. “In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘ “whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” ’ [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

The challenged modified instruction stated: “The People presented evidence that the defendant committed the crimes of LEWD ACTS ON A MINOR UNDER 14 YEARS OLD that were not charged in this case. [¶] To prove the defendant committed this crime, the people must prove that the defendant willfully touched any part of a child’s body, either on bare skin or through clothing, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved 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 the evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, 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 SEXUAL PENETRATION ON A CHILD UNDER 10 YEARS OLD, ORAL COPULATION ON A CHILD UNDER 10 YEARS OLD, AND LEWD ACTS ON A MINOR UNDER 14 YEARS OLD, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of LEWD ACT ON A MINOR UNDER 14 YEARS OLD. The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.” (Boldface added.)

As the standard pattern instruction CALCRIM No. 1191 indicates, all the charged offenses should have been listed in the italicized and bolded part of the instruction, not just the lewd act on a minor under 14 years old charge. However, this oversight did not amount to prejudicial error.

While defendant maintains the truncated listing told the jury the “evidence [he] committed a prior uncharged lewd and lascivious act was only insufficient to prove guilt of the current charges of lewd and lascivious acts . . . , and not insufficient to prove the more serious charges,” we do not believe a reasonable juror would have read the instruction in this manner. To begin with, the sentence immediately following the incomplete list of charges, correctly told the jury, “The People must still prove each element of every charge beyond a reasonable doubt” (italics added). Furthermore, multiple other instructions also told the jury it could find defendant guilty only if the prosecution proved each and every element of the charged offenses beyond a reasonable doubt (i.e., CALCRIM Nos. 220, 224, 225, 359).[4] (See Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Loy (2011) 52 Cal.4th 46, 74–77 [not reasonably likely jury misunderstood instruction given the instructions as a whole].) In closing argument, the prosecutor acknowledged the People had to prove each of the charged crimes beyond a reasonable doubt. The defense, likewise, emphasized this same point. Given this context, there is not even a remote possibility the jury believed it could convict defendant of sexual penetration and oral copulation on anything other than beyond a reasonable doubt standard. In addition, as we have discussed above, the evidence supporting defendant’s convictions is overwhelming. Accordingly, the minor error in the instruction was not prejudicial under the applicable Watson standard,[5] or even under the Chapman standard.[6]

Disposition

The judgment is affirmed.

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Banke, J.

We concur:

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Humes, P.J.

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Dondero, J.