People v. Perez CA3 ( 2021 )

Filed 9/17/21 P. v. Perez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C092217
Plaintiff and Respondent, (Super. Ct. No.
MANCRFECOD20160008687)
v.
ERIC FRANK PEREZ,
Defendant and Appellant.
A jury found defendant Eric Frank Perez guilty of sexual intercourse or sodomy
with a child under the age of 10 years old and the commission of a lewd act upon a child
under the age of 14 years old. Sentenced to 25 years to life in state prison, defendant now
contends the trial court abused its discretion by admitting evidence at trial of: (1) a 22-
year-old prior indecent exposure conviction under Evidence Code section 1108;1 and
1 Undesignated statutory references are to the Evidence Code.
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(2) the state licensing board’s decision to prohibit defendant’s presence at a day care
facility. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
C., a then six-year-old girl, had attended Jeanette Lewis’s in-home day care since
she was eight months old. At some point in time, Lewis became romantically involved
with defendant and he moved into the in-home day care with Lewis. C. and her mother
were close with Lewis, defendant, and their children.
One day in June 2016, C.’s mother picked her up from day care and noticed C.
was unusually nervous and fidgety. C.’s mother asked her what was wrong, and after
saying “nothing” several times, C. told her mother and her mother’s cousin that defendant
had done something to her that day, and described a sexual assault. C.’s mother felt very
upset. She asked C. numerous times what had happened, asking open-ended questions,
and C. told her the same story every time. When C. tried to go to the bathroom, she
looked scared and said it “hurt to poop.”
The next morning, C.’s mother asked her again what happened, and C. repeated
the details of defendant’s sexual assault. C.’s mother immediately took her to the
hospital and requested a police officer. C.’s primary complaint at the hospital was that
“she hurt from her pee hole to her butt.” Given the suspected sexual abuse, Manteca
Police Officer Benedict Jemerigbe came to the hospital and took C.’s statement. Shortly
thereafter, a forensic examiner interviewed C.
C. told the forensic examiner that she had been swimming outside at day care with
two other children when defendant called her in the house. C. came inside, and defendant
took C. into Lewis’s daughter’s bedroom. C. turned around and defendant put cream on
her “butt.” He also put cream on his “wiener.” C. said that defendant put his “wiener”
inside her “butt,” describing that he got down on her and “squeezed” her. She felt him
“squeeze[] [her] so hard” that she cried from the pain and called out for help. He slowly
wiped her “butt” and “squeezed [her] butt . . . all the way inside again” and then was
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done. C. also “play[ed] with his wiener” by going back and forth. Defendant wiped C.’s
“butt,” went to the bathroom, and zipped up.
C.’s interview with Officer Jemerigbe was largely consistent with her forensic
interview.2 However, she told Officer Jemerigbe that she spread her legs into the splits
as defendant stood behind her and put his penis “all the way to [her] butt.” C. also told
Officer Jeremigbe that defendant put his penis where she “go[es] pee,” and did not
mention touching his penis. She said that defendant had her go to the bathroom
afterwards, and that she tried to “go potty [but] it hurt.”
C. also had a medical examination. She told the medical examiner that
“ ‘somebody did touch me down there. And it hurt when he did it, but it doesn’t hurt
now.’ ” The medical examiner testified that C. had a small white line on the bottom of
her vaginal area on the anal side, which could have been caused by a man’s penis and
was one of the most common spots where injuries occur in a sexual assault.
C. testified at trial. She said that she used to swim at a house but she stopped
going there “[b]ecause something bad happened.” Although C. said she did not like to
talk about it, she said that an adult man named Eric did something bad at her babysitter’s
house. C. identified Eric in a photograph as the man who did something bad to her. She
said that the bad thing that happened did not involve her body.
Lewis “disappeared” the evening of the incident, and defendant did not know
where she went. He left numerous apologetic voice mails and text messages for Lewis.
Defendant left one message saying, “I understand you don’t want anything more with
2 Officer Jemerigbe admitted on cross-examination that, contrary to his training, he
used leading questions, asked compound questions, did not ascertain whether C. knew the
difference between the truth and a lie, did not ascertain whether C. understood the
difference in time or dates, and allowed C.’s mother to be present in the room and
interject during the interview. Officer Jemerigbe also did not confirm C.’s use of words
for different private parts.
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me,” and another that said, “I'm so sorry I hurt you.· I don't know how to make it up to
you. I'm dying inside.” Defendant went down to the Manteca Police Department on his
own volition and asked to speak with the police. Prior to doing so, he left Lewis a voice
mail saying, “I’m sorry. I was so stupid.”
Once defendant arrived at the police station, Manteca Police Detectives David
Bright and Joshua Gutierrez interviewed defendant, and the interview was played for the
jury. During the interview, defendant first denied the allegations, saying he was outside
working on the deck and watching the children in the pool on the afternoon of the
incident. However, defendant’s demeanor became more emotional and he began to fight
back tears. He eventually said that he would “take the blame for whatever it is. I’m just
here to protect my kids.” Defendant stood up to be handcuffed, but one of the detectives
said there was no need. Defendant admitted that he went inside the house with C. and
“pulled the things down” and handed her a wipe. He further admitted he put lotion on her
anus and “wiped it on her butt,” but denied playing with his penis or climbing on top of
her. However, defendant then said he took his penis out “like when you go pee” and put
his penis in her “butt.” He explained he had “wanted some all day long” with his wife,
but she kept saying not right now. Defendant said he was beating himself up about it. He
lamented losing his family because of this “stupid mistake,” and said he did not want to
live anymore. Defendant heard that people get killed in jail, but said, “It’s okay. I asked
for it. I’m ready.”
After defendant had been in jail for several days, detectives recorded a phone call
between defendant and his young children, in which defendant said he was in jail because
he “did bad things [and] I need to take care of it.”
An investigation of defendant’s home revealed a bottle of lotion in the bathroom.
The child’s bedroom where C. said the assault occurred was “completely empty.”
At trial, defendant denied going inside the house with C. on the day of the
incident. Rather, defendant said that he worked on the deck outside that day. Lewis
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came out to swim with the children and then went inside the house, so defendant stayed
outside while the children swam. At one point, C. asked to go inside to use the bathroom,
so he opened the pool gate and security door to allow her in the house. When she was
finished, she called, “done,” came outside, and continued swimming. Defendant said that
C. and her mother fabricated the allegations against him because several days before the
alleged assault, he had reported C.’s father and neighbor to a narcotics detective for
selling drugs. The narcotics detective confirmed that defendant had tipped detectives off
that his neighbors were selling drugs, but said that although defendant gave a vehicle
description, he did not mention C.’s father.
Defendant explained that he confessed during the police interview because he
thought C.’s family was targeting him based on the information he gave the detective,
and he wanted to protect his own family.
Lewis’s mother, a nurse, testified that C. had multiple abscesses on her buttocks
and perineal area as an infant, which she noticed during a diaper change. She further said
that in her experience, defendant had always been respectful to her, Lewis, and his
children.
The jury found defendant guilty of sexual intercourse or sodomy with a child
under the age of 10 years old and the commission of a lewd act upon a child under the
age of 14 years old. The trial court sentenced defendant to 25 years to life for the sexual
intercourse or sodomy conviction and imposed but stayed an eight year sentence for the
lewd act upon a child conviction per Penal Code section 654.
DISCUSSION
I
Uncharged Prior Sexual Offense And Day Care Issue
Defendant contends that the trial court abused its discretion by admitting evidence
of defendant’s indecent exposure. He argues his prior sexual offense was remote in time
and dissimilar from the charged offenses, such that it was not probative as propensity
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evidence. As a result, defendant argues evidence of his indecent exposure was
prejudicial under section 352. The People counter that defendant’s prior sexual offense
was admissible under section 1108 as relevant to his propensity for committing sex
crimes and lack of impulse control. They further argue that even if the trial court erred
by admitting the evidence, the error was harmless. Assuming without deciding the trial
court erred in admitting the evidence, we conclude the error was harmless.
II
Additional Relevant Background
Over defendant’s objection, the trial court admitted: (1) defendant’s prior indecent
exposure conviction and victim testimony from that offense as propensity evidence under
section 1108, and (2) evidence that defendant’s requested access to Lewis’s in-home, day
care facility was denied due to that conviction under section 352.
At trial, Cynthia G. testified that she worked in a hospital emergency room as an
admissions representative in June of 1999. At that time, defendant was working as a
private security guard in the same hospital. On the evening of June 15, 1999, Cynthia G.
was on duty in the ER waiting room with her colleague, Nicci F., who worked the
switchboard. Defendant, also on duty, went into the waiting room bathroom and came
out “completely nude” and did a 360-degree turn. He stared at both women and
Cynthia G. felt very uncomfortable. Defendant went back into the bathroom and
emerged again, touching his penis. Cynthia G. felt shocked and “freaked out.”
Defendant said he was going to do it again the next night, but “wanted to come the next
night.”
Nicci F. also testified. She also said that defendant exposed his entire body to her
and the admissions representative that night in the hospital, making her feel uneasy and
uncomfortable.
Defendant briefly addressed the incident in his testimony, explaining that he pled
guilty to the indecent exposure and that he was “young, stupid, and naive, and . . . fell for
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a dare.” He said it was inappropriate and wrong and that he has “pretty much dealt with
it for the rest of [his] life.”
With respect to access to a day care request, a representative from the licensing
division of the California Department of Social Services testified that she investigated
defendant’s request for clearance to work at Lewis’s day care. Defendant submitted his
fingerprints for a record clearance in 2012, which was denied due to his conviction for
indecent exposure in 1999, which was a “non-exemptible conviction.” Defendant
appealed the decision, but his appeal was denied.
III
Analysis
Section 1108 permits evidence of past sexual misconduct to prove propensity to
commit the charged sexual offense. (People v. Falsetta (1999) 21 Cal.4th 903, 911.)
Uncharged misconduct is admissible if the trial court makes a preliminary determination
that the evidence is sufficient for the jury to find -- by a preponderance of the evidence --
that the defendant committed an enumerated offense. (People v. Jandres (2014)
226 Cal.App.4th 340, 353.) Propensity evidence under this section is admissible if it is
found to be more probative than prejudicial under a section 352 balancing test. (Falsetta,
at pp. 916-917.) On appeal, admission of evidence under section 1108 is subject to a
harmless error test. (See People v. Watson (1956) 46 Cal.2d 818, People v. Mullens
(2004) 119 Cal.App.4th 648, 658-659 [applying Watson standard to an error under Evid.
Code, § 1108]; People v. Harris (1998) 60 Cal.App.4th 727, 730, 741 [same].) To assess
harmless error, we determine whether it is reasonably probable that its exclusion would
have led to a different result. (Watson, at p. 836.)
It is not reasonably probable that excluding evidence of defendant’s indecent
exposure would have led to a different result. The evidence against defendant was
overwhelming. C. had known defendant for years and identified him as the perpetrator,
both by name and sight. Her description of the sexual assault was specific and largely
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consistent, from when she first disclosed it to her mother, and then to the police officer
and forensic investigator. C.’s version of events was corroborated by the injury in her
vaginal area, as well as the lotion found in the bathroom. The empty bedroom where C.
said the assault occurred implied that defendant cleaned the room after the assault.
Additionally, the jury viewed the video interrogation of defendant, where he admitted
that, consistent with C.’s story, he put lotion on C.’s anus, took out his penis, and put it in
her “butt,” because he had “wanted some all day long” from his wife. Emotional, he
stood up, offering to be handcuffed. He repeatedly made vaguely incriminating
statements thereafter: referring to his “mistake,” telling his children he “did bad things,”
and apologizing to Lewis for being “so stupid.” Given the strength of this evidence
against defendant, it is not reasonably probable that defendant would have obtained a
more favorable result before the jury absent the assumed error.
Defendant next contends that evidence that he sought, and was denied, access to
Lewis’s day care was improperly admitted under section 1108. However, the trial court
admitted this evidence after exercising its discretion under section 352, and did not rely
on section 1108. Indeed, the evidence was not used as propensity evidence, either in
closing or in the jury instructions. Rather, the prosecutor used the evidence to note that
defendant knew that he was not supposed to be at the day care or have contact with the
children, yet he did so anyway.
To the extent defendant now claims the trial court erred by admitting the evidence
under section 352, we again conclude defendant fails to show prejudice from its
admission. It is not reasonably probable that the brief references to defendant’s request
for fingerprint clearance changed the jury’s mind when viewed in conjunction with the
veritable mountain of incriminating evidence presented against defendant, as discussed
ante.
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DISPOSITION
The judgment is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Renner, J.
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