People v. Alegria CA4/1 ( 2015 )

Filed 10/22/15 P. v. Alegria CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067453
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1200756)
ALFONSO MUNOZ ALEGRIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Charles
Jacob Koosed, Judge. Affirmed.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr. and Martin Edward Doyle, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Alfonso Munoz Alegria (Munoz) of committing lewd acts upon a
child under 14 years old (Pen. Code,1 § 288, subd. (a); count 1 (Jane Doe No. 1); and
count 8 (Jane Doe No. 3)); lewd acts by force or fear upon a child under 14 years old
(§ 288, subd. (b)(1); counts 2 and 3 (Jane Doe No. 1), and counts 5, 6, and 7 (Jane Doe
No. 2)); and sexual penetration by force or fear of a child under 14 years old (§ 269,
subd. (a)(5); count 4 (Jane Doe No. 2)). The jury also found true an allegation that
Munoz had molested more than one victim. (§ 667.1, subdivision (e)(4).) The court
sentenced Munoz to a total term of 130 years to life in state prison.
Munoz contends the court (1) erroneously admitted into evidence his uncharged
acts under Evidence Code section 1108 to prove sexual propensity, thus violating his
constitutional right to due process; and (2) abused its discretion by excluding certain
evidence, thus violating his rights to present a defense, a fair trial and due process of law.
We affirm the judgment.
BACKGROUND
Munoz does not challenge the sufficiency of the evidence to support his
convictions, therefore we do not set forth the details of his different convictions. We
summarize only the facts necessary to address his appellate claim that the court erred by
admitting evidence of his uncharged crimes.
1 Statutory references are to the Penal Code unless otherwise stated.
2
Jane Doe No. 1 (counts 1, 2 and 3)
Jane Doe No. 1 was 19 years old at the time of trial. Munoz is her step-
grandfather. She testified that one night, when she was approximately nine years old, she
was leaving the bathroom at Munoz's house when he unzipped her shorts and touched her
vagina. He told her to be quiet and not say anything or else her grandmother and parents
would get mad. On another occasion, when she was at her grandparent's house, he put
her on his lap, touched her vagina and tried to kiss her mouth. He told her not tell
anyone. In a third incident, he tried to touch her breast and kiss her but she shoved his
hand away.
Jane Doe No. 2 (Counts 4, 5, 6, 7)
Jane Doe No. 2 was 16 years old at the time of trial. She and her two brothers
were adopted by Munoz and his wife. In December 2011, Jane Doe No. 2 disclosed to
her birth mother that Munoz had molested her. A few days afterwards, Jane Doe No. 2
told a forensic examiner the details of Munoz's sexual misconduct. Specifically, when
Jane Doe No. 2 was about five or six years old, Munoz touched her vagina. About six
weeks later, Munoz touched Jane Doe No. 2 again, telling her that if she told her
grandmother, she would get mad and not want to see Jane Doe No. 2 anymore. Munoz
also stuck his finger in Jane Doe No. 2's rectum. Munoz tried to have Jane Doe No. 2
touch his penis. Munoz tried to put his tongue in Jane Doe No. 2's mouth, but she pushed
him away. In a separate incident, Munoz squeezed her buttocks. In another incident,
Munoz touched her buttocks and rubbed his penis against her buttocks while she was
brushing her teeth. She was approximately 10 years old the last time Munoz tried to
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touch her inappropriately. At trial, Jane Doe No. 2 recanted all the incriminating
statements she had made to the examiner. Jane Doe No. 2 denied that Munoz had ever
sexually molested her. The jury saw a video recording of Jane Doe No. 2's forensic
interview.
Jane Doe No. 3 (Count 8)
Eight-year-old Jane Doe No. 3 testified that when she was seven years old, Munoz
rubbed her vagina with his hand. She told him she was going to bed, and he kissed her
on the mouth. She reported the incident to her mother right away.
The Prosecution's Motion to Admit Into Evidence Munoz's Uncharged Crimes
At the start of trial, the People moved in limine to introduce evidence of Munoz's
uncharged crimes against three different females. (Evid. Code, § 1108.) The prosecutor
sought to introduce the uncharged crimes under Penal Code, section 647.6, and referred
to the elements of the crime as stated in CALCRIM No. 1122: "To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
engaged in conduct directed at a child; [¶] 2. A normal person, without hesitation, would
have been disturbed, irritated, offended, or injured by the defendant's conduct; [¶] 3. The
defendant's conduct was motivated by an unnatural or abnormal sexual interest in the
child."
Munoz objected to the testimony of two of the victims, arguing they had not
claimed that Munoz touched them; therefore, his uncharged crimes against them were
different from the charged crimes. He further argued that under Evidence Code section
352, the proffered testimony was more prejudicial than probative and would require a
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trial within a trial. However, as to the testimony of Jane Doe No. 6, defense counsel
conceded it would be admissible: "Your Honor, I'm reasonable. I'll submit on that last
one, you know, if there was contact, I'm not going to sit here and say that contact was
appropriate and it would be covered [under Penal Code section 647.6 and Evidence Code
section 1108] if somebody was—if that child is going to say 'I was bothered because he
hit me. I didn't tell him to do it[.]' [Y]ou know, I have to keep my credibility here."
Applying the criteria set forth in People v. Falsetta (1999) 21 Cal. 4th 903, 916-
917 (Falsetta), the court admitted into evidence some of the uncharged crimes testimony
and excluded others. The court stated the uncharged crimes were "fairly simple in nature;
in other words, the acts the witnesses will be testifying to appear to be just, you know,
isolated incidents, but something that happened that seemed relatively simple as far as
their proof is concerned. I don't think it's going to confuse the issues at all. The
prejudicial impact, I think, does not outweigh the relevance. I think they're highly
relevant. I don't think this places undue burden on the defendant." The court
acknowledged that Munoz's prior uncharged acts were not similar to his charged crimes,
but did not find that single factor sufficient to exclude the uncharged crimes evidence.
Testimony Regarding Munoz's Uncharged Crimes
Jane Doe No. 4 was twenty-four years old at the time of trial, and testified that
when she was 15 years old and a volunteer at the church where Munoz was a pastor, he
called her into his office, shut the door, and told her to start modeling so he could see
what she was wearing. She complied with his requests to kneel down, bend over, turn
around and walk around the room.
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Jane Doe No. 5 was 27 years old at the time of trial, and testified she had attended
the church where Munoz was pastor. One day, when she was 17 years old, Munoz called
her into his office, closed the door, asked if he could give her a hug and proceeded to hug
her and kiss her on the cheeks four times. She felt uncomfortable and weird, felt he was
going to kiss her lips, and pushed him away.
Jane Doe No. 6 was 25 years old at the time of trial and testified Munoz was her
pastor when she was younger. When she was 15 years old, she was babysitting at his
house one day, and he sat next to her, hugged her, and pulled her close as if to hug her.
She felt uncomfortable and stood up to get water. He followed her and spanked her on
the buttocks. Immediately afterwards Jane Doe No. 6 telephoned Munoz's wife, who
picked her up and took her home.
DISCUSSION
I.
The Court Did Not Err By Admitting the Uncharged Crimes Evidence
Munoz contends his uncharged acts involving "questionable conduct with post-
pubescent teenage girls" were inadmissible under Evidence Code section 1108 because
they were different in nature from the charged offenses, which involved allegations he
"touched the private areas of prepubescent granddaughters." He also argues the
uncharged crime testimony was prejudicial under Evidence Code section 352 because it
"created too great a risk that the jury would wish to punish him for the [uncharged
crimes] regardless of whether sufficient evidence of guilt was presented as to the charged
offenses." He further claims he "provided evidence upon which jurors could have relied
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to find the victims had motive to make false allegations. The defense theory was that
[Jane Doe No. 2's mother and the mother's sister] respective mothers of Jane Doe No. 2 . .
. and Jane Doe No. 3. . . , were friends and bore a grudge against [their mother and
Munoz]."
A. Legal Principles
Evidence Code section 1108 sets forth an exception to the general rule against the
use of evidence of a defendant's misconduct apart from the charged offense to show a
propensity to commit crimes. (People v. Villatoro (2012) 54 Cal. 4th 1152, 1159-1160.)
When a defendant is charged with a sex offense, Evidence Code section 1108 allows
admission of evidence of other sex offenses to prove the defendant's disposition to
commit sex offenses, subject to the trial court's discretion to exclude the evidence under
Evidence Code section 352. (Evid. Code, § 1108, subd. (a); People v. Lewis (2009) 46
Cal. 4th 1255, 1286.) Evidence Code section 1108 is premised on the recognition that sex
offense propensity evidence is critical in sex offense cases given the serious and secretive
nature of sex crimes. (Falsetta, supra, 21 Cal.4th at p. 918.) Furthermore, the uncharged
and charged offenses are considered sufficiently similar if they are both sexual offenses
enumerated in Evidence Code section 1108. (People v. Frazier (2001) 89 Cal. App. 4th
30, 41.)
When applying Evidence Code section 1108 in a particular case, a defendant's fair
trial rights are safeguarded by requiring the trial court to engage in a careful weighing
process under Evidence Code section 352 to determine whether the probative value is
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substantially outweighed by the danger of undue prejudice, confusion, or time
consumption. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
The prejudice that exclusion of evidence under Evidence Code section 352 is
designed to avoid "is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. '[All] 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 Evidence Code 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. In applying [Evidence Code]
section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis
(1988) 46 Cal. 3d 612, 638.) " 'In other words, evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury, motivating [it]
to use the information, not to logically evaluate the point upon which it is relevant, but to
reward or punish one side because of the jurors' emotional reaction.' " (People v. Branch
(2001) 91 Cal. App. 4th 274, 286.)
Based on Evidence Code section 1108, the presumption is in favor of the
admissibility of other sex offense evidence; however, the evidence should not be
admitted in cases where its admission could result in a fundamentally unfair trial.
(People v. Loy (2011) 52 Cal. 4th 46, 62; Falsetta, supra, 21 Cal.4th at p. 917.) When
evaluating the other sex offense evidence, relevant factors include "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
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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." (Falsetta, at p. 917.)
On appeal, we review the trial court's admission of Evidence Code section 1108
evidence, including its Evidence Code section 352 weighing process, for abuse of
discretion. (People v. Dejourney (2011) 192 Cal. App. 4th 1091, 1104-1105; People v.
Miramontes (2010) 189 Cal. App. 4th 1085, 1097.) "We will not find that a court abuses
its discretion in admitting such other sexual acts evidence unless its ruling ' "falls outside
the bounds of reason." ' " (People v. Dejourney, at p. 1105.) Alternatively stated, we will
not reverse a trial court's exercise of discretion under Evidence Code sections 1108 and
352 unless its decision was arbitrary, capricious or patently absurd and resulted in a
manifest miscarriage of justice. (People v. Lewis, supra, 46 Cal.4th at p. 1286; People v.
Nguyen (2010) 184 Cal. App. 4th 1096, 1116.)
B. Analysis
The trial court's decision to admit the uncharged crimes testimony was not
arbitrary or capricious. Rather, the court applied the Falsetta criteria and concluded
Munoz's uncharged crimes were not remote; and they would not confuse the jury because
those victims were older. Moreover, although the court recognized the charged and
uncharged crimes were not similar, they both involved sexual offenses enumerated in
Evidence Code section 1108, subdivision (d)(1)(A). The uncharged crimes were less
egregious than the charged crimes, therefore admission of the uncharged crimes would
not inflame the jury's emotions against Munoz.
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Munoz also raises a facial challenge to the constitutionality of Evidence Code
section 1108, which he claims violates due process. But he recognizes the California
Supreme Court has rejected this contention in Falsetta, supra, 21 Cal.4th at p. 917, and
we are obligated to follow it under Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450. He raises the issue here to preserve it for federal review.
II.
The Court Did Not Err by Excluding Certain Hearsay Testimony
Munoz contends the court erroneously sustained the prosecutor's hearsay objection
to a question made to Jane Doe No. 1 on cross-examination because the question required
a simple yes or no answer and, in any event, the information a likely follow-up question
would have elicited was not being offered for its truth, but to "support the defense theory
that [Jane Doe No. 2's mother] had a motive to persuade Jane Doe No. 2 . . . to make up
the allegations against Munoz."
A. Background
On cross-examination of Jane Doe No. 1, defense counsel asked, "Did you ever
hear any conversations between [Munoz's wife and Jane Doe No. 2's mother] about
custody of [Jane Doe No. 2 and two of her brothers]?" The People objected on hearsay
grounds and the court sustained the objection. The court similarly sustained a hearsay
objection to the next question that defense counsel asked: "Did [Jane Doe No. 2's
mother] ever talk to you about custody of her children?"
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B. Applicable Principles
We review for an abuse of discretion the trial court's decision to exclude evidence
based on the hearsay rule. (People v. Pirwani (2004) 119 Cal. App. 4th 770, 787.) Under
this standard, the trial court's ruling will not be disturbed in the absence of a showing by
defendant that the court exercised its discretion "in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez
(1999) 20 Cal. 4th 1, 9-10.) We review the record and recite the facts in a light most
favorable to the judgment. (People v. Hill (1998) 17 Cal. 4th 800, 848-849.)
Evidence Code section 1200, subdivision (a), states: " 'Hearsay evidence' is
evidence of a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated." "Hearsay is generally
excluded because the out-of-court declarant is not under oath and cannot be cross-
examined to test perception, memory, clarity of expression, and veracity, and because the
jury (or other trier of fact) is unable to observe the declarant's demeanor." (People v.
Cudjo (1993) 6 Cal. 4th 585, 608.)
C. Analysis
The court did not err by concluding defense counsel's question to Jane Doe No. 1
would elicit hearsay information. Although the call of the first question was for an
affirmative or negative response, the subject matter underlying the question involved
statements by persons other than the testifying witness, and therefore a likely follow-up
question would have elicited impermissible hearsay testimony. Although Munoz claims
that the information sought by the challenged question was not being adduced for its
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truth, that assertion is belied by Munoz's claimed purpose for that testimony: to show that
Jane Doe No. 2's mother was conspiring to persuade her daughter to fabricate stories
about Munoz. That purpose could only reasonably be achieved if in fact it was true that
Jane Doe No. 2's mother and grandmother had conflicts between them regarding Jane
Doe No. 2 and her siblings.
In any event, the defense counsel in closing arguments fully explained the family
tension between Jane Doe No. 2's mother and grandmother: "Now [Jane Doe No. 2's
mother]. [She] is big for me, because [she] is one of, if not the, coconspirator in this
case. She's the reason why [Jane Doe No. 2's grandmother] took those three children and
raised them. [The prosecution] brought in a Georgia witness, but they didn't bring [Jane
Doe No. 2's mother] because they didn't want you to see [Jane Doe No. 2's mother's]
reaction, [her] anger, [her] frustration. It was during the trial that we saw that [Jane Doe
No. 2's mother and Jane Doe No. 3's mother] lived together. It was not noted in any of
the reports. And, folks, they put these allegations together. The verbal abuse, disrespect,
and anger growing up led that family to get rid of [Munoz]. [¶] Because [Jane Doe No.
2's mother] was probably a bitch. [She] was mean. [She] didn't care for these children,
and everybody in the family knew that [Munoz and his wife] adopted children."
Therefore the jury was well-apprised of this issue, and nonetheless convicted Munoz. It
is not reasonably probable that he would have achieved a different result absent any error
in excluding the challenged hearsay testimony. (People v. Watson (1956) 46 Cal. 2d 818,
836.)
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P.J.
McINTYRE, J.
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