Filed 9/14/18 P. v. Guzman CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant Manuel Alejandro Guzman sexually abused his girlfriend’s 11-year-old daughter. A jury found him guilty of two counts of committing a lewd or lascivious act on a child who is under the age of 14 years. With respect to one of the counts, the jury also found defendant engaged in substantial sexual conduct with the child.[1] The trial court sentenced defendant to serve 10 years in state prison for these crimes, plus a consecutive eight-month term for an unrelated DUI conviction in another case.

On appeal, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional rights by admitting evidence of three uncharged offenses committed against defendant’s former girlfriend; (2) the trial court also erred and violated defendant’s federal constitutional rights by instructing the jury with CALCRIM No. 1191A regarding the proper use of such evidence; and (3) the cumulative prejudicial effect of these assertions of error requires reversal of defendant’s convictions.

We affirm. Evidence of two uncharged sexual offenses was properly admitted under Evidence Code section 1108.[2] Because the probative value of this evidence was not substantially outweighed by the danger of undue prejudice, or any other statutory counterweight contained in section 352, we also conclude admission of the evidence did not violate defendant’s federal constitutional rights. And while evidence of a third uncharged offense was improperly admitted under section 1108, the error was harmless. Defendant’s challenge to CALCRIM No. 1191A is both forfeited and without merit. We also reject defendant’s assertion of cumulative prejudice.

FACTS

Defendant began a romantic relationship with the victim’s mother in November 2010. In addition to the victim, who turned nine years old that month, the mother also had a son who turned six years old later in the month. In June 2011, defendant moved in with the mother and her children in Vacaville. The mother gave birth to a second son, fathered by defendant, about six months later.

In May 2012, with the onset of menstruation, the victim’s body started undergoing certain physical changes associated with puberty, including the development of breasts. Defendant began “pay[ing] more attention to her” shortly thereafter. As the mother explained, “[h]e would hug her frequently,” but not the other children, and would buy her “whatever she asked for.” On one occasion, the mother came into the living room while defendant and the victim were lying on the couch watching television. When she came in, the victim got up and left the room. Based on the front of defendant’s pants, the mother could tell his penis was erect. When the mother asked for an explanation, defendant said nothing was going on and that his erection was “normal.” The mother asked defendant on several other occasions whether anything sexual was going on between him and the victim. He denied it. She also told him to stop hugging the victim. Defendant responded: “Well, tell her too, because she’s at fault too.”

In August 2013, the mother briefly ended her relationship with defendant and moved with the children to her sister’s house in Bakersfield. As the mother explained, they were behind on rent and “fighting a lot.” Defendant drank alcohol every day and frequently became intoxicated and verbally abusive. The catalyst for the move was defendant insulting the victim while drunk, telling her she was “a whore just like her mother.” However, about 10 days later, the mother and defendant resumed their relationship. In the meantime, defendant moved into his father’s house in Winters. The mother and the children also briefly moved into that house. About a week later, defendant rented a different house in Winters, where he would live with the mother and the children for about a month. This is where defendant would commit the lewd acts at issue in this appeal.

The Charged Sexual Abuse

The victim was 11 years old when she lived with defendant and her mother and brothers in Winters. Defendant was 30 years old. The victim testified to the details of a specific incident of sexual abuse that occurred during the overnight hours between September 26 and 27, 2013. Before recounting the details of that particular incident, we return to the mother’s testimony to provide some context. On September 27, the mother decided to again end the relationship with defendant and move with the children to her sister’s house in Bakersfield. Despite defendant’s promise “that everything was going to be different,” the frequent hugging between defendant and the victim continued, as did defendant’s excessive drinking and the verbal abuse that accompanied it. On September 26, defendant stayed home from work and drank beer all day. He and the mother began fighting about defendant’s drinking after the victim got home from school. At some point that evening, the mother called defendant’s sister to come over and try to calm him down. Defendant and his sister talked for about three hours by defendant’s truck behind the house, where defendant had gone to continue drinking. Defendant’s sister left around 10:00 p.m. This was also the time the mother put the children to bed. The mother retired to her bedroom, but did not go to sleep. Instead, she watched television and periodically went outside to check on defendant because she was afraid he would try to drive while intoxicated. When the mother checked on defendant around 2:00 a.m., he was asleep in his truck. About an hour later, the mother found defendant asleep on the living room floor, so she finally went to sleep.

The victim testified that she woke up and went to the bathroom as defendant was coming into the house. When she came out of the bathroom, defendant was putting his beer in the refrigerator. He walked over to the victim and hugged her, telling her to wait for him in the living room while he used the bathroom. The victim complied, waiting for defendant on the couch. When he came out, defendant joined the victim on the couch and the two lay down together on their sides, defendant’s chest against the victim’s back. Defendant then proceeded to touch her breasts under her clothes, moved his hand down to touch her vagina under her clothes, and penetrated her vagina with his fingers. Defendant also moved her hand into his pants so that it was grabbing his erect penis. The next thing the victim remembered was lying on her back and defendant, still on his side, “started to suck on [her] breasts.” He then pulled her sweatpants and underwear down and penetrated her vagina with his penis. The victim testified that defendant had penetrated her vagina with his fingers before, but this was the first time he touched her vagina with his penis. Surprised, the victim got up and went to her bedroom. This incident supplied the basis for defendant’s conviction in count 1 for committing a lewd or lascivious act with the victim, as well as the jury’s finding he engaged in substantial sexual conduct with the child.

The victim also testified defendant first touched her breasts under her clothes about one week after they moved to Winters. As she explained, they were sitting on the couch watching television together when defendant reached beneath her shirt, moved her bra, and touched her breasts. This incident supplied the basis for defendant’s conviction in count 2 for committing a lewd or lascivious act with the victim[3]

The Move to Bakersfield and Revelation of the Abuse

As mentioned, the mother again ended her relationship with defendant and moved to her sister’s house in Bakersfield with the children on September 27. She was unaware of what had transpired during the early morning hours of that day, or any specific incidents of sexual abuse. When she left, the mother took a laptop defendant had bought for the victim. The victim used that laptop to communicate with defendant via e-mail between September 27 and October 19. Nearly 900 e-mails were exchanged during that time period. We will not recount the content of these messages in any detail. It will suffice to note they strongly suggest sexual abuse had occurred. Indeed, in one of the messages, defendant told the victim he found a pair of her underwear and kept them in his bed to remember her. When the victim asked where defendant found the underwear, he responded, “I found them in the black sweats you were wearing the last time that we . . .’ ”

The mother discovered these e-mail exchanges on October 19, but was unable to read them because the messages were in English and the mother was fluent in only Spanish. When she asked the victim to read the messages to her in Spanish, the victim refused and said she was “ashamed.” The next week, the mother showed the e-mails to a domestic violence counselor, whom she sought out in connection with the filing of a request for a domestic violence restraining order against defendant. This counselor called the Bakersfield Police Department. A police officer responded to the counselor’s office and spoke to the victim about the content of the e-mails. The victim was “withdrawn” and “very hesitant to answer questions.” She told the officer she and defendant “were just friends” who “liked to stay in touch with each other.” The victim denied any sexual contact between her and defendant. When the officer pressed her on this, the victim said “she didn’t want to answer [his] questions because she didn’t want anybody to get into trouble.”

In the meantime, the mother received notification defendant was seeking custody of their son and alleging the mother took him to Bakersfield without defendant’s permission. A court date was set for November 4 in the Yolo County Superior Court. The mother also followed through on filing for a domestic violence restraining order against defendant in Kern County. A court date in that matter was set for November 6 in the Kern County Superior Court. The Yolo County matter was continued pending the outcome of the Kern County matter, which resulted in issuance of the requested restraining order.

Sometime in November, one of the victim’s aunts and two cousins visited the house in Bakersfield and stayed for about a week. The cousins, G. and A., are two and three years older than the victim, respectively. Because the family suspected abuse, but the victim would not talk about it with her mother, A.’s mother asked her to talk to the victim. While the victim and her cousins were playing together, A. asked the victim if she could ask her some questions, saying she could hold A.’s hand and close her eyes so she would not be embarrassed. A. told the victim to squeeze her hand if the answer was yes and not to squeeze if the answer was no. The victim squeezed A.’s hand when asked whether she had sexual intercourse with defendant and squeezed it again when asked if it happened more than once.

The victim disclosed the abuse to her mother on November 19. That afternoon, the mother was leaving the house to see an attorney regarding her dispute with defendant over custody of their son. The victim stopped her mother before she left and told her some of what occurred on the couch during the early morning hours of September 27. According to the mother’s testimony, the victim was “crying” and “very nervous.” She told the mother that defendant was “a bad guy” and explained he was standing outside the bathroom when she came out and told her to wait for him on the couch, which she did. The mother asked whether defendant kissed her and where. The victim said he kissed her on the mouth. The mother then asked whether defendant put his penis in her vagina. The victim said “yes” and that “she didn’t want to say any[]more.”

When the mother returned from her meeting with the lawyer, she called the Bakersfield Police Department and reported what the victim had told her. An officer came over to the house and spoke with the victim about the incident. The victim told the officer she encountered defendant when she got up to use the bathroom. Defendant hugged her and told her to wait for him while he used the bathroom. The victim initially returned to her bedroom, but then came out to the couch when she heard defendant come out of the bathroom. Defendant and the victim lay on the couch together, defendant kissed her, and then he pulled down her pants and they had sex. The officer testified that the victim “was crying hysterically” when she told him these things. When the officer asked the victim why she reported what defendant had done, she said “she didn’t want her mom to pay for a lawyer because of a child custody issue between [defendant] and her mother.”

Several days later, the mother brought the victim to the Yolo County Sheriff’s Department and reported the abuse there as well. A detective scheduled a forensic interview for the victim with a child interview specialist the same day. The victim also made a pretext phone call to defendant claiming to be pregnant. Defendant hung up the phone.

During the forensic interview, the victim was given the option of telling the interviewer what happened or writing things down, followed by questions concerning what she wrote. The victim chose the latter option. The first thing she wrote down was: “ ‘I got abused on September 27th, 2013 by [defendant]. He is my little brother’s father. He was my mom’s boyfriend.’ ” The victim also wrote: “[H]e had sex with me.” After obtaining some context regarding that date being the day the mother moved the children to Bakersfield, the interviewer asked how many times defendant had sex with her. The victim responded: “Only once.” In response to follow-up questions, the victim provided essentially the same sequence of events she later testified to at trial. She explained defendant approached her when she went to the bathroom, hugged her, and told her to wait for him while he used the bathroom. The victim went to the living room. When defendant came out, he and the victim lay together on the couch and defendant “started touching [her] private parts” with his hand. Defendant then “started to lower his pants down” and “told [her] to grab his penis.” When the interviewer asked where defendant touched the victim, she wrote down: “He would touch my breasts.” She also wrote: “Butt. And my vagina.” In response to follow-up questions, the victim explained: “It would start out—he would start out by touching one part. And then went to the other and went to the other. Then the last—the last thing he would make me touch his thing.” Asked to continue with the series of events that occurred on the couch, the victim wrote down: “He put his penis in my vagina.” In response to follow-up questions, the victim explained she and defendant were lying “sideways” on the couch, defendant pulled down her pants and underwear, lowered his pants, and penetrated her vagina with his penis for “a few seconds.” The victim then “got up and went to [her] room.”[4]

Toward the end of the interview, the interviewer asked the victim why she decided to tell her mother about the abuse. The victim explained that the day she told her mother was the day the mother was going to see a lawyer and the victim “didn’t want her to go get a lawyer just because [she] wouldn’t talk,” adding, “So I went to her and I like told her the truth of what happened.” While the victim’s responses to follow-up questions are not entirely clear, it appears she believed her keeping the abuse a secret was the reason the mother needed a lawyer in the custody matter. What is clear is the victim’s statement that the mother did not tell her what to say during the interview. As the victim put it: “She just told me I should like say the truth and what I know.”

Finally, the prosecution also presented evidence of three uncharged offenses committed against defendant’s former girlfriend, K. We provide the details of these offenses in the discussion portion of the opinion, to which we now turn.[5]

DISCUSSION

I

Admission of Uncharged Sexual Offense Evidence

Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by admitting evidence of uncharged offenses. We conclude evidence of two sexual offenses was properly admitted. Evidence of a third offense was not sufficiently shown to be a “sexual offense” under section 1108 and should have been excluded. This error, however, was harmless.

A.

The Challenged Evidence

Defendant started dating K. in February 2006. She had just turned 18 years old and was finishing her senior year in high school. Defendant was 22 years old. After high school, K. started college at the University of California at Davis and defendant periodically stayed the night in her dorm room. K.’s first sexual experience was being raped by defendant. As she explained: “I just remember he was on top of me, and I remember saying ‘no,’ and, like, tried to push him off of me, and it just kind of happened. I just—I don’t know. It wasn’t like I was fighting, like, hysterical, but it was more like a, ‘No, I don’t want to do this. I am not ready.’ ” K. continued her relationship with defendant for four years. She explained she was “in denial” about what happened and “didn’t even want to think about it.” Later in the relationship, K. brought up the fact she said no the first time they had sex. Defendant responded, “[E]veryone says no the first time.”

Defendant drank alcohol to excess during this relationship as well. Toward the end of the relationship, defendant became verbally abusive. K. explained: “When I was getting independent, I was a whore. If I went out with my friends, I was a slut.” On December 31, 2009, defendant and K. were out drinking alcohol in celebration of the new year. When they returned to defendant’s house, he wanted to have sex. K. said no because defendant was “too drunk” and was being “very aggressive.” Defendant became “very angry,” pushed her up against a wall, and punched the wall next to her face. When K. retreated to the bedroom, defendant followed. As she explained: “[H]e shoved me on to the bed, and I remember him ripping off my underwear. I remember him strangling me. After that, I don’t really remember what happened. I just remember going to sleep crying, and I remember waking up feeling, like, disgusting and horrible, but knowing that I wasn’t going to tell anyone . . . .”

K. ended the relationship with defendant two months later. He continued to contact her via e-mail, however. In some of the messages, defendant claimed “he was going to change”; in others, he was “aggressive and mean.” About a month after the breakup, defendant sent K. an e-mail one night saying he was having a party at his house. Attached to the e-mail was a picture of another woman’s underwear. In response to this e-mail, K. went over to defendant’s house. As she explained, she came over to “see for [herself] and be done,” i.e., to bring “closure” to the “warped relationship” she felt she and defendant were still in. Defendant let her in, took a used condom out of the trash, and threw it at her. K. avoided being hit by the condom and went into his bedroom, where defendant showed her the underwear. K. “ripped them up” and went back into the living room, where they argued and defendant tried to spit in her face. Defendant then shoved her on the couch. K. ran for the phone to call the police. Defendant again pushed her down. K. then ran outside, got in her car, and drove away while calling the police on her cell phone. The operator told her to stay there and officers would be there soon. In the meantime, defendant had apparently also called the police. K. turned around and drove back to defendant’s house. When she pulled up, defendant “jumped in front of [the] car, and his elbow hit [the] side window.” When the police arrived, K. was arrested for assault with a deadly weapon, but was never charged. The arrest was eventually expunged.

B.

In Limine Proceedings

Defendant moved in limine to exclude K.’s testimony. Defense counsel argued it was improper character evidence establishing “for the most part, that [defendant] was an alcoholic[,] . . . an abusive boyfriend[,] . . . [and] violent.” Acknowledging K.’s testimony would recount “three specific incidents” of purported sexual offenses, defense counsel argued the first of these incidents, i.e., the rape that occurred in K.’s dorm room was too dissimilar to the charged offenses to be admissible under section 1108 to show propensity. With respect to the other two incidents, defense counsel argued they were not sexual offenses at all, but rather “more along the lines of an act of force or violence or domestic violence, and that is not permissible in this trial because those are, again, bad character testimony.” Defense counsel also argued the incidents were inadmissible under section 352.

In response, the prosecutor argued each of the incidents was admissible under sections 1108 and 352. With respect to the first incident, the prosecutor argued: “So in this case what I think is most probative is that [K.] was a virgin. She had never had sex before. She had one boyfriend before and had never even kissed him. So [defendant] was her real first boyfriend and real experience. And so she was naïve, very naïve for an 18-year-old, which makes her more situated to [the victim] who was 11 at the time, but clearly naïve and never had any sexual experience before. [¶] And [K.] told him no that she did not want to have sex, and he did it anyway. While she is not going to testify that there was any physical force in that circumstance[, Penal Code section] 261, forcible rape, can be accomplished by duress, which is what happened. She told him no that she didn’t want to do it, and he did it anyway. So I don’t think—there’s based on the [section] 352 analysis, I don’t really see any reason not to admit that evidence . . . .”

With respect to the second incident, i.e., the attempted rape that occurred on New Year’s Eve, the prosecutor argued: “[This] was another situation where [defendant] had been drinking, and he was intoxicated. [K.] didn’t want to have sex with him because he was intoxicated, and—now she—he definitely laid on top of her and was proceeding towards having sex with her, even though she told him not to, but she does not clearly remember whether there was intercourse accomplished. [¶] I think that incident is relevant because he had been drinking, and [the victim] will testify that he had been drinking before some of the acts that he committed against [her]. So that makes that act relevant, not only because of the sexual assault, but also because he had been drinking.”

Finally, with respect to the third incident, i.e., the assault in defendant’s house following the breakup, the prosecutor argued that incident “is particularly relevant because during an argument, [defendant] asked [K.] to come over to his house, and that they were broken up or they were breaking up, and he had another woman’s underwear and apparently threw them at [K.] [¶] And that is probative in this case because there are e-mails where [defendant] is telling [the victim] that he has her underwear from the last time that they—and it says, dot, dot, dot. [¶] So that suggests to me that he is—he keeps souvenirs.”

The trial court allowed each of the three incidents into evidence, explaining section 1108 allows evidence of other sexual offenses as long as that evidence is also admissible under section 352. Addressing the section 352 analysis, the trial court first noted the prosecution did not appear to be attempting to use a stronger or more inflammatory case on the uncharged offenses to bolster a weaker or less inflammatory case on the charged offenses. If anything, the trial court added, “[t]he current case probably [is] more inflammatory given the age difference between the parties.” The trial court also concluded admission of the evidence would not consume an undue amount of time. On the probative value side of the balance, the trial court noted the uncharged offenses were “not so remote in time, 2006 through 2010,” and while they were “quite different” from the charged offenses, the court explained that regardless of the fact the victim was a child and K. was an adult, both involved “somebody of the opposite sex and the insistence of having his way. I think that to me is the probative value, whether it is [K.] or [the victim], it is an insistence that this is what is going to happen.” The trial court concluded the probative value of the evidence was not substantially outweighed by the danger of undue prejudice or any of the other statutory counterweights contained in section 352.

C.

Analysis

With certain exceptions, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (§ 1101, subd. (a).)

One such exception is found in section 1108, which provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) “Section 1108 permits ‘ “ ‘consideration of . . . other sexual offenses as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.’ ” ’ [Citation.] As this court has previously observed, ‘ “[i]n enacting . . . section 1108, the Legislature decided 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.” [Citation.]’ [Citations.]” (People v. Holford (2012) 203 Cal.App.4th 155, 182.) The admission of evidence under this section is, however, expressly subject to the limitations of section 352. (§ 1108, subd. (a).) Indeed, “section 1108 passes constitutional muster if and only if section 352 preserves the accused’s right to be tried for the current offense. ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ [Citations.]” (People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris).)

1. Two of the Incidents are Sexual Offenses

We have no difficulty determining that the first two incidents qualify as sexual offenses within the meaning of section 1108. Rape, attempted rape, and assault with intent to commit rape are specifically listed as a sexual offenses in that section. (§ 1108, subd. (d)(1)(A) [rape], (B) [assault with intent to commit rape], (F) [“attempt . . . to engage in conduct described in this paragraph”].) The first incident described by K. in her testimony clearly qualified as a rape. While the second incident was unclear with respect to whether a rape occurred, it certainly qualified as either an attempted rape or an assault with intent to commit rape. Evidence of these two incidents was therefore admissible under section 1108 unless inadmissible under section 352.

The third incident presents more difficulty. Without question, defendant assaulted K. There were also sexual overtones. Specifically, defendant lured K. to his house with an e-mail apparently designed to make her jealous that he had sex with another woman. When she arrived, he threw a used condom at her and handed her a pair of women’s underwear. After K. ripped the underwear, an argument in the living room turned violent as defendant spit at K. and pushed her down twice before she was able to run outside. The question is whether these sexual overtones are enough to support a conclusion defendant intended to rape K. when he assaulted her. We conclude these circumstances are simply too ambiguous to support such a conclusion. This specific incident was therefore not admissible under section 1108.[6] For that reason, we need not address this incident in connection with either relevance or section 352 analyses and return to it when we assess prejudice.

2. Relevance

Before turning to section 352, we first reject defendant’s assertion the sexual offenses committed against K. are too dissimilar to the charged offenses to be considered relevant at all. The fact defendant committed date rape against his 18-year-old former girlfriend tends in reason to make it more likely he had sex and engaged in other lewd acts with the victim. (See § 210 [relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].) Despite the obvious difference in age between the victims, both were young and female, and neither had engaged in sexual intercourse. And despite the fact K. was 18 years old while the victim was still a child, the line between childhood and adulthood is somewhat arbitrary. K. testified she “had not really dated anyone” before defendant, “was kind of shy and self-conscious,” and was a virgin when defendant had sex with her despite her telling him no. The victim was far younger than K. when defendant had sex and engaged in other lewd conduct with her. However, as the mother testified, defendant did not begin to show the victim unwanted attention until she started developing breasts. Thus, while the victim was clearly still a child, the differences between her age and that of K. were not so dissimilar as to render defendant’s rape of the latter irrelevant to prove propensity to engage in lewd conduct with the former. Nor are we persuaded by defendant’s observation that rape requires forcible conduct, while lewd conduct with a child does not. While true, K. testified she did not offer much resistance to defendant’s rape. And while the victim offered no resistance to the lewd conduct, clearly present was the duress implicit in the fact defendant was her mother’s boyfriend and nearly 20 years older than her.

The second sexual offense committed against K. was less similar to the charged offenses in terms of the respective ages of the victims. By the time this incident occurred, K. was in her early twenties and had been in a consensual sexual relationship with defendant for nearly four years. This offense against K. also included a substantial amount of force. However, something different made them similar. Both the uncharged assault with intent to commit rape against K. and the charged lewd act of having sexual intercourse with the victim involved defendant being heavily intoxicated. Viewing the testimony of K. and the victim together, it appears defendant had a propensity for gratifying―or at least attempting to gratify―himself sexually while intoxicated, regardless of objection and resistance (in the case of K.), and regardless of the moral and legal prohibition against having sex with a child (in the case of the victim). Simply put, while we acknowledge the differences between the uncharged and charged acts, they do not render the evidence irrelevant.

3. Section 352 and Due Process

We now turn to section 352. This section provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) We begin by observing “that ‘ “[t]he prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” [Citations.]’ [Citation.]” (People v. Holford, supra, 203 Cal.App.4th at p. 167.) Moreover, “[e]vidence is not inadmissible under section 352 unless the probative value is ‘substantially’ outweighed by the probability of a ‘substantial danger’ of undue prejudice or other statutory counterweights.” (People v. Holford, supra, at p. 167.)

We have already determined the uncharged offenses were relevant to prove propensity to commit the charged offenses. The differences noted above, however, do render these uncharged offenses less probative of propensity than more similar crimes would have been. Nevertheless, there is some probative value, for the reasons already expressed, in our discussion of relevance. This probative value is not diminished by remoteness, there being less than a four-year gap between the second uncharged offense committed against K. and the charged offenses. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12-year gap did not “significantly lessen the probative value” of the uncharged crime].) Weighed against the probative value is the inevitable prejudice flowing from the admission of prior crimes evidence. However, we cannot conclude the nature of the uncharged crimes was “more inflammatory than the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 283.) Indeed, we conclude the very dissimilarity defendant uses to argue diminished probative value, i.e., the fact K. was an adult, renders the charged offenses more inflammatory in nature. At the very least, the prejudice flowing from these uncharged crimes does not substantially outweigh that evidence’s probative value. Nor was the probative value substantially outweighed by the amount of time needed to present or refute the evidence. K.’s testimony did not take an inordinate amount of time. Finally, we cannot conclude the evidence would have misled the jury or caused it to be confused as to the issues before it. The trial court did not abuse its discretion under section 352.

Nevertheless, defendant asserts this case is similar to Harris, supra, 60 Cal.App.4th 727, in which we held the trial court prejudicially abused its discretion under section 352 by admitting evidence of an uncharged forcible rape of a victim the defendant “viciously” beat and left bloody, evidence we characterized as “inflammatory in the extreme,” where the charged offenses involved “at worst [the] defendant lick[ing] and fondl[ing] an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him.” (Id. at p. 738.) Here, while force was used against K., defendant’s crimes against her are not remotely as inflammatory as the evidence admitted in Harris. Moreover, defendant’s charged crimes involve far more inflammatory conduct than licking and fondling two adult victims. Defendant had sex and engaged in other lewd acts with an 11-year-old girl. In Harris, the uncharged crimes evidence was also 23 years old. (Id. at p. 739.) Here, the uncharged offenses against K. were less than four years old. Thus, unlike that case, remoteness does not weigh in favor of exclusion of the evidence. Finally, for reasons already expressed, we conclude the uncharged crimes evidence in this case, while not highly probative of propensity, was nevertheless more probative than the evidence admitted in Harris. Thus, defendant’s reliance on Harris is misplaced.

Having concluded the evidence was admissible under section 352, “we must also reject defendant’s argument that he was deprived of his constitutional right to a fair trial. ‘ “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” ’ [Citations.]” (People v. Holford, supra, 203 Cal.App.4th at p. 180.) As in People v. Branch, supra, 91 Cal.App.4th 274, “it is unlikely that the jury would have been so prejudiced against [defendant] as a consequence of [the uncharged offenses] that he was denied a fair trial.” (Id. at pp. 283-284.)

4. Prejudice

Finally, we must assess the prejudicial impact of the admission of the third incident about which K. testified. As mentioned, after K. ended her relationship with defendant, he continued to contact her via e-mail. In one of these e-mails, defendant said he was having a party and attached a picture of another woman’s underwear. This prompted K. to go over to his house, where he threw a used condom at her and showed her the underwear. A verbal argument in the living room led to defendant spitting at K. and shoving her on the couch. When she ran for the phone to call the police, he pushed her down a second time. K. then ran out of the house and drove away. Competing phone calls to police, and minor impact between defendant and K.’s car, resulted in K. being arrested. That arrest was expunged.

Regardless of which standard of prejudice we use, the admission of this evidence was harmless. Indeed, this incident was not even mentioned in the prosecutor’s closing argument regarding use of prior crimes evidence to prove propensity to commit the charged crimes. In light of the strong evidence of guilt, including the victim’s testimony recounting the details of the abuse, her prior mostly consistent statements regarding that abuse, the mother’s testimony concerning the inappropriate attention defendant began showing the victim after she began developing breasts, and strong corroboration of the abuse found in the nearly 900 e-mails exchanged between defendant and the victim after the mother moved with the children to Bakersfield, including one in which defendant admitted to keeping a pair of the victim’s underwear in his bed, we have no difficulty concluding beyond a reasonable doubt the result of the proceeding would have been the same had this evidence not been admitted.

II

Asserted Instructional Error

Defendant also claims the trial court erred and violated his federal constitutional rights by instructing the jury with CALCRIM No. 1191A, regarding the proper use of evidence of uncharged sexual offenses. Defendant did not object to this instruction at trial. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there was no error, much less a miscarriage of justice.

As delivered to the jury in this case, CALCRIM No. 1191A provided: “[The] People presented evidence that the defendant committed the crime of rape and assault with the intent to commit rape that were not charged in this case. These crimes are defined for you in these instructions. [¶] 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 this 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 lewd or lascivious acts with a child under the age of 14 years as charged here. [¶] If you conclude that the defendant committed the uncharged offenses, 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 a lewd or lascivious act with a child under the age of 14 years. The People must still prove each charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”

Our Supreme Court has held this instruction’s CALJIC counterpart “properly instructed that jurors may ‘infer the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses,’ and that jurors ‘may—but are not required to—infer from this predisposition that the defendant was likely to commit and did commit the charged offense.’ ” (People v. Villatoro (2012) 54 Cal.4th 1152, 1166-1167, quoting People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.)

Nevertheless, defendant argues the instruction improperly allowed the jury in this case to draw such an inference from ambiguous uncharged offenses that are so dissimilar to the charged offenses that they were irrelevant to show propensity. We have already rejected the argument upon which this instructional error claim is based, at least with respect to two of the three uncharged offenses. For reasons already expressed, those two offenses were sufficiently similar to the charged offenses to amount to relevant propensity evidence. That evidence was also properly admitted under section 352. Instruction with CALCRIM No. 1191A was therefore necessary to inform the jury what to do with this evidence. Evidence of the third uncharged offense should not have been admitted under section 1108. But this evidentiary error is not transformed into an instructional error simply because the jury was instructed with CALCRIM No. 1191A. That instruction was supported by the first two uncharged sexual offenses. The instruction specifically referred to two uncharged offenses, i.e., “evidence that the defendant committed the crime of rape and assault with the intent to commit rape.” And because, as already mentioned, the prosecutor did not argue the third uncharged offense showed defendant was predisposed to commit sexual offenses, the jury was likely to have inferred the instruction referred to only the first and second incidents to which K. testified.

Thus, the instruction was supported by evidence of the first two uncharged sexual offenses, from which the jury could properly have inferred a predisposition to commit the charged offenses. (People v. Villatoro, supra, 54 Cal.4th at p. 1167.) And the jury was not likely to have used it to draw an impermissible inference from the third uncharged offense. There was no instructional error.

III

Cumulative Prejudice

Having concluded there was only one nonprejudicial error, defendant’s assertion of cumulative prejudice must also fail.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

RAYE, P. J.

/s/

DUARTE, J.