People v. Macalingay CA4/2 ( 2015 )

Filed 9/22/15 P. v. Macalingay CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061746
v. (Super.Ct.No. RIF1206948)
QUINTIN A. MACALINGAY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Each of defendant Quintin A. Macalingay’s three stepgranddaughters testified that
he molested her. He had a consistent modus operandi; when one of them was sitting on
his lap, he would fondle her breast area and touch her crotch.
In addition, one of defendant’s adult stepdaughters (the victims’ aunt) testified
that, when she was approximately 16, defendant repeatedly fondled her breasts while she
was sleeping. Twice, he showed her photographs of naked women.
A jury found defendant guilty of two counts of a lewd act on a child under 14.
(Pen. Code, § 288.) A multiple-victim allegation for purposes of the “One Strike” law
was found true. (Pen. Code, § 667.61, subd. (e)(4).) The jury deadlocked on a third
count of a lewd act and on one count of sexual penetration of a child 10 or younger. (Pen.
Code, § 288.7, subd. (b).) The trial court eventually dismissed these counts.
Defendant was sentenced to a total of 30 years to life, along with the usual fines,
fees, and requirements.
Defendant now contends that the trial court erred by admitting the evidence of
uncharged “bad acts” involving his stepdaughter. We find no error. Hence, we will
affirm.
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I
FACTUAL BACKGROUND
Defendant had two adult stepdaughters, Mary and Christine. Mary had three minor
daughters, Jane Doe 1, Jane Doe 2, and Jane Doe 3.1
A. Jane Doe No. 3 — Count 4, Lewd Act (Hung Jury).
Doe 3 was the youngest of the three girls. At the time of trial, she was seven.
One time when Doe 3 was five or six, she was at defendant’s house, sitting on his
lap in the living room while they both watched TV. Her parents were there, watching TV
with them. Her grandmother (defendant’s wife) was in the kitchen. Defendant touched
Doe 3’s “pee pee” and “butt” over her clothes.
Another time, also at defendant’s house, and also while she was on his lap,
defendant touched her “booby” over her clothes.
B. Jane Doe No. 1 — Count 1, Sexual Penetration (Hung Jury) and Count 2,
Lewd Act (Guilty).
Doe 1 was the middle child. At the time of trial, she was nine.
On July 4, 2012, when Doe 1 was seven years old, her parents took her to a family
gathering at her Aunt Christine’s house. Defendant was sitting outside and Doe 1 was
sitting on his lap while they both watched fireworks. The only other adult who was
outside was Doe 1’s uncle, and he was not near them.
1 The trial court ordered that the victims be referred to by these fictitious
names. (Pen. Code, § 293.5.)
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Defendant put his hand under Doe 1’s shirt and touched her “boob.” He then put
his hand down her pants and touched her “pee pee.” He put his finger in her “pee pee
hole.” It hurt.
Twice before, when she was at his house, sitting on his lap, defendant had put his
hand under her clothes, squeezed her “booby,” and touched her “pee pee.”
C. Jane Doe No. 2 — Count 3, Lewd Act (Guilty).
Doe 2 was the eldest girl. At the time of trial, she was 11.
One time when Doe 2 was 9 or 10, she was sitting on defendant’s lap in his living
room while they both watched TV. Her parents were not there. Her grandmother was in
the kitchen.
Defendant rubbed Doe 2’s vagina over her clothes, then put his hand under her
clothes and rubbed her breast. She tried to pull away, but he kept pulling her back. When
he stopped, she got up.
The next day, all three girls and their mother were at a doctor’s office. Doe 3 told
their mother that defendant had touched Doe 2’s “boobs.” She added that this had also
happened to her and to Doe 1. Both Doe 1 and Doe 2 confirmed this. Doe 1 added that
defendant had touched her “pee pee.”
D. Further Investigation.
Forensic interviews were conducted with each of the three girls. These were
videotaped and played for the jury. The girls’ statements in the interviews were largely
consistent with their testimony at trial, with the following exceptions.
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Doe 1 said that, when defendant touched her at Christine’s house, they were at a
kitchen table; she did not mention watching fireworks. Doe 1 also said that defendant
had put his tongue in her mouth. At trial, however, she denied this.
Doe 2 said that, when defendant touched her breast, his hand was under her shirt
but over her bra. At trial, however, she testified that she was not wearing a bra.
A forensic medical examination of Doe 1 produced only normal findings;
however, this was to be expected.
According to both the forensic interviewer and the forensic medical examiner,
most persons who sexually abuse children are family members. Although fondling or
touching usually occurs in secrecy, it may also occur when other people are in the room.
Sexual abuse often starts with grooming. “[I]t starts with something innocent that
a child feels is fine and then . . . gradually becomes more . . . .”
E. Uncharged Prior Sexual Offenses.
Christine, defendant’s youngest stepdaughter, was 34 at the time of trial.
Christine testified that around 1995, when she was 15, 16, or 17, defendant
molested her repeatedly. At times when her mother was not home, around 5:00 a.m.,
before defendant left for work, she would wake up to find him fondling her breasts under
her clothes. He claimed he was just covering her up with a blanket. Finally, she told
defendant, “[If] you do that again, I’m going to call the police,” and defendant stopped.
When she was 17, she told her mother about the molestation, but her mother did not
believe her.
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On one occasion, when Christine was about 17, defendant showed her a Playboy
centerfold. Another time, when she was still in high school, he showed her a wallet-sized
photograph of a naked woman.
When Christine was 18, she and her mother got into a fight because she was
staying overnight with friends and not coming home. The police were called. Christine
told them about the molestation and about the nude photographs. They said that, because
she had no proof, she should just move out. Christine then told her sister Mary about the
molestation and about the nude photographs.
F. Defense Evidence.
Defendant’s next-door neighbors and their children, who all had a “close
relationship” with defendant, testified that he had never shown any sexual interest in
children.
Defendant’s wife confirmed that she had had an argument with Christine during
which the police arrived, and that Christine told them that defendant had molested her.
Otherwise, however, Christine never told her anything about defendant molesting her or
showing her nude photographs.
II
OTHER “BAD ACTS” EVIDENCE
Defendant contends that the trial court erred by overruling his objection under
Evidence Code section 352 to the evidence of uncharged offenses involving Christine.
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A. Additional Factual and Procedural Background.
The prosecution moved in limine to admit evidence of defendant’s molestation of
Christine under Evidence Code section 1108. Defense counsel objected based on
Evidence Code section 352, arguing that the conduct shown was insufficiently similar,
was remote, and had not resulted in a conviction. After hearing argument, the trial court
admitted this evidence.
The trial court noted that it considered “the conduct of showing [Christine]
pictures of nude women” to be “separate” from the molestation. The prosecutor argued,
“[I]t’s very similar in regards to trying to sexualize a child, trying to make it seem like
these things are okay, that they’re not that big of a deal.” Defense counsel responded that,
absent expert testimony, it was not apparent that defendant’s conduct with his
stepgranddaughters included “sexualization.” The trial court found the prosecutor’s
argument “persuasive,” and it also admitted this evidence.
The jury was instructed: “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 defendant was likely to commit and did commit Counts 1 through 4 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] Counts 1 through 4. The
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People must still prove each charge and allegation beyond a reasonable doubt. Do not
consider this evidence for any other purpose.” (CALCRIM No. 1191.)
B. Analysis.
Evidence Code section 1108, subdivision (a), provides that “[i]n a criminal action
in which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code “section 1108 ‘implicitly abrogates prior decisions . . . indicating
that “propensity” evidence is per se unduly prejudicial to the defense.’ [Citation.]”
(People v. Villatoro (2012) 54 Cal.4th 1152, 1160.)
“‘[Evidence Code s]ection 1108 preserves the trial court’s discretion to exclude
evidence under [Evidence Code] section 352 if its prejudicial effect substantially
outweighs its probative value. [Citations.] In deciding whether to exclude evidence of
another sexual offense under section 1108, “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
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” [Citation.] Like any ruling under section 352, the trial court’s
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ruling admitting evidence under section 1108 is subject to review for abuse of discretion.’
[Citation.]” (People v. Avila (2014) 59 Cal.4th 496, 515.)
Evidence that defendant had a propensity to commit sexual offenses against
underage girls was substantially probative. “‘In the determination of probabilities of
guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for
excluding such evidence is not that it lacks probative value, but that it is too relevant.”
(People v. Fitch (1997) 55 Cal.App.4th 172, 179.) It was particularly probative in this
case, because it tended to prove that defendant acted with a sexual intent when he
committed the charged crimes.
Defendant argues that the uncharged offenses were not sufficiently similar to the
charged offenses. However, defendant’s fondling of Christine’s breasts under her clothes
was similar to his fondling of the victims’ breasts under their clothes. In addition, as
defendant concedes, it is probative that in both instances, he targeted young female
relatives when left alone with them. (People v. Cottone (2013) 57 Cal.4th 269, 286 [“The
conduct in this case, which involved touching the vaginal area of his young sister, was
manifestly relevant on the question of whether defendant sexually assaulted another
young female relative.”].) It is also significant that they were related to him not by blood,
but through marriage.
Defendant points to two differences. First, Christine was older and more
physically mature than the other victims. Second, defendant molested Christine when she
was in her bed and the other victims when they were on his lap. In both instances,
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however, he took advantage of the ambiguity of the circumstances; with Christine, he
claimed to be pulling a blanket over her, and with his stepgranddaughters, he would claim
to be just holding them on his lap. In any event, despite these differences, the evidence
still had substantial probative value because it showed that defendant had a predisposition
to molest young female relatives in his home, starting by fondling their breasts. Indeed,
the differences tended to show that this predisposition transcended any particular age or
other circumstances.
Defendant also argues that the evidence, dating from approximately 17 years
before the charged offenses, was remote. “Remoteness of prior offenses relates to ‘the
question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory,
a substantial gap between the prior offenses and the charged offenses means that it is less
likely that the defendant had the propensity to commit the charged offenses. However,
. . . significant similarities between the prior and the charged offenses may ‘balance[] out
the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in
nature to the charged offenses, the prior offenses have greater probative value in proving
propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th
274, 285.) Here, given the significant similarities noted above, the lapse of time simply
meant that defendant’s predisposition was persistent and long-standing.
Next, defendant notes that the jury learned that he had never been punished for the
uncharged offenses. “[T]he circumstance that the uncharged acts resulted in a criminal
conviction and a substantial prison term decreases, in two ways, the potential for
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prejudice, undue consumption of time, or confusing the issues. [Citation.] First, the jury
[i]s not tempted to convict defendant of the charged offenses, regardless of his guilt, in
order to assure that he would be punished for the uncharged offenses . . . . Second, the
attention of the jury [i]s not diverted to a determination whether or not defendant had
committed the uncharged offenses . . . . [Citation.]” (People v. Balcom (1994) 7 Cal.4th
414, 427.)
“The potential for prejudice is decreased, however, when testimony describing the
defendant’s uncharged acts is no stronger or more inflammatory than the testimony
concerning the charged offense. [Citation.]” (People v. Tran (2011) 51 Cal.4th 1040,
1047; accord, People v. McCurdy (2014) 59 Cal.4th 1063, 1099.) Defendant concedes
that the uncharged offenses were no more inflammatory than the charged offenses.
Defendant also concedes that “consumption of undue time . . . is of no moment herein.”
Thus, we cannot say that the evidence of the uncharged offenses was unduly prejudicial.
We therefore conclude that the trial court did not err by admitting the evidence that
defendant molested Christine.
Essentially as a fallback argument, however, defendant claims that, even if the trial
court properly admitted evidence that he molested Christine, it erred by admitting the
evidence that he showed Christine pictures of naked women.
Basically, defendant argues that this evidence was not sufficiently similar to any of
the charged conduct, and therefore it should have been excluded under Evidence Code
section 352. This overlooks the fact that it was relevant for more than one reason. First,
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it was relevant to show a predisposition to commit sexual offenses under Evidence Code
section 1108.2 Second, however, it was also relevant under Evidence Code section 1101,
subdivision (b) to show that defendant entertained a sexual intent toward Christine.
When defendant touched Christine, he claimed that he was just pulling a blanket over her.
The fact that he later showed her sexually tinged photographs was probative to rebut this.
Evidence that he had a sexual intent toward Christine, in turn, was probative to show that
he had a sexual intent toward the victims.
“‘The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to
prove intent, the uncharged misconduct must be sufficiently similar to support the
inference that the defendant “‘probably harbor[ed] the same intent in each instance.’
[Citations.]” [Citation.]’ [Citation.]” (People v. Leon (2015) 61 Cal.4th 569, 598.)
Here, the very fact that defendant chose the same victim — Christine — for both the
uncharged touching and the uncharged display of the photographs made the latter
significantly probative of his intent during the former. (See People v. Hoover (2000) 77
Cal.App.4th 1020, 1026 [Fourth Dist., Div. Two].)
2 It is a crime to show “harmful matter” to a minor. (Pen. Code, § 288.2,
subd. (a); see also Pen. Code, § 313, subd. (a).) This is a “sexual offense” within the
meaning of Evidence Code section 1108. (Evid. Code, § 1108, subd. (d)(1)(A).) In
addition, as defendant concedes, annoying or molesting a child (Pen. Code, § 647.6, subd.
(a)(1)) is also a “sexual offense” (Evid. Code, § 1108, subd. (d)(1)(A)).
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The evidence regarding the nude photographs was not particularly inflammatory
nor particularly time-consuming. Accordingly, the trial court did not err by admitting it.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
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