P. v. Gallegos

Filed 3/12/07 P. v. Gallegos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

David R. Mugridge for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted appellant Frank Herrera Gallegos of violating Penal Code section 288, subdivision (a), committing a lewd act on a child under the age of 14 years. He challenges his conviction on the grounds the trial court erred prejudicially in admitting evidence of prior uncharged sexual offenses pursuant to Evidence Code section 1108.^[1] Gallegos further contends that reliance on this evidence as a factor in sentencing violated the principles set forth in People v. Harvey (1979) 25 Cal.3d 754 (Harvey) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

We conclude the trial court properly admitted evidence pursuant to section 1108. We also conclude that because Gallegos did not enter into a plea agreement and was convicted by a jury, the Harveyrule is inapplicable. Finally, the imposition of the midterm does not violate either Blakely or the United State Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. Therefore, we will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On January 24, 2006, an amended information was filed in the Tulare County Superior Court charging Gallegos with committing a lewd act on his daughter, A.G., a child under 14 years of age, between January 1, 1993, and March 11, 1994, and on his niece, D.M., a child under 14, between September 28, 1995, and December 31, 1996. Both charges alleged violations of Penal Code section 288, subdivision (a).

The prosecution filed a motion to admit, pursuant to sections 1108, subdivision (b), and 1101, subdivision (b), evidence of other sexual offenses committed by Gallegos. Gallegos sought to preclude the admission of such evidence. The trial court heard argument and granted the prosecutions motion.

On January 31, 2006, after the trial had commenced, the trial court granted Gallegoss motion to dismiss count 1, regarding a lewd act on A.G., because of untimely prosecution. On February 2, the jury found Gallegos guilty of the count 2 offense against D.M. On March 9, 2006, Gallegos was sentenced to the midterm of six years in state prison.

A.G. was 19 years old at the time of Gallegosstrial. She testified that when she was six years old, Gallegos began taking showers with her. Both of them would be naked. Gallegos would use a cloth to rub her arms and legs, but he used his hands to rub her breasts and vagina, sometimes inserting a finger into her vagina. He did this every time they showered together. On one occasion, A.G. put her hand on Gallegoss penis and he held her hand there. By the time A.G. was eight, she had stopped taking showers with Gallegos.

D.M. was born in 1984. Gallegos is her uncle and D.M. spent most holidays at the Gallegoss home. Around 1995 or 1996, when D.M. was about 11 or 12 years old, she was spending the night at the Gallegoss home. D.M. was sleeping in her cousin A.G.s bedroom when she awakened to find Gallegos leaning over her with his hands under her blouse and bra, rubbing her breasts. When D.M. asked what he was doing, Gallegos responded that he was sorry and had thought she was A.G.

In 1999, D.M.s mother told D.M. that D.M.s older sister, R.M., claimed to have been molested by Gallegos. D.M. then told her mother that Gallegos also had molested her. In October 2000, Detective Lori Canaba conducted a follow-up interview with D.M., during which D.M. told Canaba that Gallegos had molested her.

Four girls testified to uncharged acts of molestation committed by Gallegos. D.M.s sister, R.M., testified that when she was 11 years old and spending the night at the Gallegos home she was sleeping in her cousins room. R.M. was awakened by a voice and found Gallegos, wearing only underwear, on top of her. Gallegos lifted her shirt and bra and began sucking on her nipple. He then pulled down R.M.s pants and underwear, pulled down his own underwear, and began rubbing his penis on her vagina. After molesting her, Gallegos took R.M. to the bathroom, wiped her between her legs, and then had her kneel beside him to pray because [they] sinned.

About a year later, when R.M. was 12, she again was spending the night at the Gallegos home. She awoke to find Gallegos in her room, pulling off her covers. R.M. told him to get away or she would tell. He left the room.

V.S. is the much younger sister of Gallegoss wife, Alice. In 1974, when V.S. was eight years old, she was sleeping at the Gallegos home when Gallegos came into the room. Gallegos put his hand under her nightgown and touched her chest. V.S. told Alice about the incident. In October 2000, V.S. was contacted by Canaba and she told her about the incident.

L.Z. is the niece of Gallegos. In 1979, when L.Z. was about eight years old, she was asleep at the Gallegos home when she awoke to find Gallegos on top of her. She pushed him off and felt his penis come out of her vagina and rub against her leg. She ran to the bathroom and locked the door; she saw blood in the toilet. The next morning there was blood on her underwear.

L.Z. also testified to another incident when she was eight and was spending the night at the Gallegos home she awoke to find Gallegos on top of her. She felt that his penis was inside her. She pushed him off and ran to the bathroom.

On a third occasion when L.Z. was about 12 years old, she was sleeping at the Gallegos home when she awoke to find Gallegos crawling into the room on his hands and knees. She told him to get out, then shut and locked the door behind him.

Finally, in 1999, L.Z. told her parents about Gallegoss actions. In October 2000, L.Z. was interviewed by Canaba and she told her about the molestations in detail.

L.H. also is a niece of Gallegos. In 1975, when L.H. was about six years old, she was sleeping at the Gallegos house when she felt pressure on her lower body and awoke to find Gallegos on top of her. When L.H. was 15 years old, she again was spending the night at the Gallegos home. Gallegos approached her, told her he and his wife were having problems, and asked if she could help him out. Gallegos took her to the bedroom, pulled down her shorts, and had vaginal intercourse with her.

When L.H. was 16, Gallegos again asked her to help him out. Gallegos went to L.H.s home and the two had intercourse. Shortly after L.H. turned 17, Gallegos told her that everyone in the family knew about the two of them having intercourse and she ran away. L.H. had intercourse with Gallegos on two subsequent occasions when she was 21.

Finally, in the summer of 1999, L.H.s mother asked her if anything had ever happened between her and Gallegos. In October 2000, L.H. gave a statement to Canaba.

Anthony Urquiza is a psychologist who testified regarding child sexual abuse accommodation syndrome. Urquiza testified that a child who is molested often keeps the molestation secret initially, feels helpless to prevent further sexual abuse, copes by disassociating from the situation, delays disclosing the abuse, and may disavow the disclosure.

DISCUSSION

I. Admission of Section 1108 Evidence

Gallegos contends that section 1108 evidence was admitted contrary to the safeguards set forth in section 352.

Prior to the commencement of trial, the prosecution filed a motion seeking to admit evidence pursuant to section 1108 of other sexual offenses committed by Gallegos. Gallegos opposed the admission and filed a motion to exclude the evidence. In his opposition, Gallegos asserted that the uncharged offenses were not similar to the charged offenses and were remote in time. The trial court conducted a hearing pursuant to section 352, heard argument, and concluded that the section 1108 evidence was admissible.

On appeal, Gallegos contends the trial court abused its discretion in admitting the evidence of his prior sex offenses under section 1108 because that evidence was substantially more prejudicial than probative, consumed undue time, and, as a result, violated due process and rendered the trial fundamentally unfair. A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)

Section 1101 provides that in general evidence of a persons 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).) Section 1108 creates an exception to this rule: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. ( 1108, subd. (a).) The sections definition of sexual offense includes both the charged and uncharged offenses at issue in this case. ( 1108, subd. (d)(1).)

The purpose of section 1108 is to [permit] courts to admit such evidence on a common sense basis -- without a precondition of finding a non-character purpose for which it is relevant -- and [to permit] rational assessment by juries of evidence so admitted. This includes consideration of the other sexual offenses as evidence of the defendants 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.] (People v. Falsetta (1999) 21 Cal.4th 903, 912.) A consequence of the section is that:

[T]rial courts may no longer deem propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citation.] (Id. at pp. 916-917.)

Section 352 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. The trial court here conducted a section 352 hearing on the admissibility of the section 1108 evidence.

A proper balancing of these factors here discloses the following. The charged and uncharged crimes all involved young, female relatives of Gallegos, who were either living at or visiting his home. This evidence established a pattern of similar acts of misconduct, against similar victims, under similar circumstances, to those of the allegations of the charged offenses. (People v. Walker(2006) 139 Cal.App.4th 782, 803.)

The uncharged offenses were not so remote in time to the charged offenses as to militate against their admissibility. The charged offenses were alleged to have occurred in 1993 and 1995. Testimony relating to uncharged acts placed these acts as occurring from the mid-1970s through the late 1980s. The uncharged offenses show a continuous pattern that started in the 1970s and continued through the 1990s. No specific time limits are set forth in the statute or case law as to when an uncharged offense is deemed so remote as to be inadmissible. Uncharged offenses that are similar in nature to the charged offenses, and that occurred 30 years prior to the charged offenses, have been deemed admissible. (People v. Branch (2001) 91 Cal.App.4th 274, 284-285.)

Undoubtedly the evidence was harmful to the defense, but this is not the standard of prejudice under section 352. (People v. Zapien (1993) 4 Cal.4th 929, 958.) The evidence was not unduly prejudicial. The term undue prejudice does not refer to evidence that tends to establish guilt. All evidence that tends to establish guilt is prejudicial to a defendants case. (People v. Walker, supra, 139 Cal.App.4th at p. 806.) Undue prejudice refers to evidence that prompts an emotional reaction and tends to cause the jury to decide the case on an improper basis. The evidence admitted at Gallegoss trial was highly probative on the issues and did not encourage the judging of Gallegos based on extraneous factors.

As for Gallegoss claim of undue consumption of time, Gallegos estimated the contested evidence would occupy one day or slightly more of testimony. The determination of whether section 1108 evidence will consume undue time is left to the discretion of the trial court. (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The evidentiary portion of the trial ultimately lasted six days.

The contention that admission of the section 1108 evidence violates due process is not persuasive. The court in People v. Fitch, supra, 55 Cal.App.4th 172, noted that federal courts have routinely rejected the argument that use of prior crimes evidence to show a defendants propensity to commit a crime violates due process. (Id. at p. 180, and federal authorities cited therein.) Additionally, our Supreme Court held that section 1108 is constitutional in People v. Falsetta, supra, 21 Cal.4th 903. Furthermore, the trial court provided additional safeguards beyond that required in section 1108 when it instructed the jury that it could consider this evidence only if convinced beyond a reasonable doubt that Gallegos committed the uncharged offenses. The statute and the pattern instruction require only that the jury be convinced by a preponderance of the evidence.

We conclude the trial court did not abuse its discretion in admitting the section 1108 evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)

II. Sentencing

Gallegos was sentenced to the midterm of six years in prison. He contends the trial court utilized the section 1108 evidence as a factor in sentencing, in violation of the Harveyrule and Blakely. We disagree.

We first dispense with Gallegoss argument that the Harveyrule was violated. In Harvey, the California Supreme Court held that absent a contrary agreement at the time a defendant enters into a plea bargain, the facts of counts dismissed pursuant to the bargain may not be considered in sentencing. (Harvey, supra, 25 Cal.3d at p. 758.) Gallegos did not enter into a plea bargain; he was convicted by a jury. Therefore, the Harveyrule is inapplicable.

Gallegos also contends the trial court erred in relying upon the section 1108 evidence to impose the midterm prison sentence. Under rule 4.406(b) of the California Rules of Court, the sentencing court is not required to provide a statement of reasons for its choice if it selects the midterm. (People v. Garcia (1985) 166 Cal.App.3d 1056, 1070-1071.) Additionally, denial of probation is not a sentencing choice for which a court is required to state reasons. (People v. Villanueva (1991) 230 Cal.App.3d 1157, 1161.)

Furthermore, in Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at pp. 301, 303.) Recently, in Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court clarified that In accord with Blakely the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] (Id. at p. ___ [127 S.Ct. at p. 868].)

We conclude there was no constitutional error under Blakely or Cunningham because the trial court imposed the middle term, which is the statutory maximum, at sentencing.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

KANE, J.

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^[1] All further statutory references are to the Evidence Code unless otherwise specified.