People v. Bermudez CA5 ( 2021 )

Filed 12/14/21 P. v. Bermudez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081814
Plaintiff and Respondent,
(Super. Ct. No. BF167336A)
v.
JOEL NUNEZ BERMUDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Snauffer, J.
Defendant Joel Nunez Bermudez stands convicted, following a jury trial, of rape
by force or fear and incest. On appeal, defendant contends the trial court erred by
admitting evidence of his prior sexual misconduct. The People disagree. We affirm.
PROCEDURAL SUMMARY
On March 8, 2017,1 the Kern County District Attorney filed an information
charging defendant with rape by force or fear (Pen. Code, § 261, subd. (a)(2); count 1)
and incest (Pen. Code, § 285; count 2).
On August 24, 2020, the jury found defendant guilty on both counts.
On September 21, 2020, the trial court sentenced defendant to an aggregate term
of eight years as follows: on count 1, eight years (the upper term); and on count 2,
three years (the upper term), stayed pursuant to Penal Code section 654.
On the same date, defendant filed a notice of appeal.
FACTUAL SUMMARY
Defendant was Tressie N.’s ex-husband and the biological father of two of her
children, Jane Doe2 and A.N. 3 In early 2017, Tressie, Jane, A.N., and A.N.’s daughter
moved from Texas to Bakersfield and temporarily stayed at defendant’s house. Prior to
that time, the last time Jane had lived with defendant was when she was approximately
one year old.
When the women moved into defendant’s house, defendant slept in one room and
the women slept in a different room on a pallet made of blankets. On February 14, which
was about two or three weeks after they moved in, defendant offered to let Jane sleep in
his bed with him if the pallet was too hard for her back. She declined because she did not
1 All further dates refer to the year 2017 except as otherwise noted.
2 Jane Doe’s date of birth was February 18, 1997.
3 Tressie also referred to a son that she shared with defendant, but he was not named
in the record. She also had an older daughter, M.G. Defendant was not M.G.’s
biological father.
2.
know defendant well and was not comfortable sleeping in the same bed as him. She told
defendant that she was not comfortable sleeping in his bed with him.
Tressie testified that on February 15, the same sleeping arrangement was in
place—the women sleeping on the pallet in one bedroom and defendant sleeping on a bed
in his own room—except that A.N. was not at home. Tressie, Jane, and A.N.’s daughter
all went to bed at the same time, no later than 9:30 p.m. 4
Jane testified that on February 15, defendant again extended an offer to let her
sleep in his bed with him. He told her that “if [she] just wanted to sleep in the bed with
him … it would be fine because he[ was her] dad and he would[ not] do anything like that
to [her].” When she said, “like that” she meant “[s]exually.” Jane “was hesitant and still
did[ not] want to” sleep in defendant’s bed with him “but [she] wanted to prove [her]self
wrong that he wouldn’t do anything [sic], so [she] said sure.” Jane got into the king-sized
bed before defendant, wearing a black tank top and blue sweatpants. About a minute
later, defendant got into the bed. He told Jane that she could sleep close to him if she
wanted or they could sleep on opposite sides of the bed. Jane fell asleep on the far end of
the bed, away from defendant.
That night or early the next morning, Jane woke up when she felt defendant move
close to her. He touched her shoulder with his hand and she felt his beard touch her back.
Defendant then put his hand under Jane’s shirt and touched her breasts. Jane froze and
did not say anything because she “was scared and … did[ not] really know exactly what
to say because [she] still could[ not] believe that … was happening.” Defendant moved
closer and began to “hump” Jane while both were clothed. Defendant then reached under
her sweatpants and underwear and touched her vagina for one to two minutes. Defendant
then moved Jane onto her back by pulling her shoulder toward him. Defendant began to
4 Tressie also testified that Jane regularly “stay[ed] up all night and sle[pt] all day.”
3.
pull down his pants, asked Jane if she was a virgin, and called her “mi’ja.”5 Jane
responded that she was not. Defendant kissed Jane on her body and pulled off her
clothing. Defendant stopped momentarily to grab a condom. He put the condom on and
began to have vaginal intercourse with Jane. Soon after defendant began having
intercourse with Jane, she said “no … Stop. I don’t like this. I don’t want this.” She
said “no” more than one time. 6 Defendant pinned Jane’s hands to the headboard and
continued to have intercourse with her. Defendant then moved Jane onto her stomach.
She did not feel that she could have moved away because he was on top of her.
Defendant then moved Jane onto her hands and knees. She did not feel that she could
have moved away because defendant was holding her hips. Defendant then moved Jane
onto her back. Throughout, Jane was afraid to move away from defendant. At some
point during the intercourse, Jane heard her mother call her name and walk around
outside of the bedroom. Near the end of the intercourse, defendant asked Jane if she
wanted him to ejaculate inside of her. She said “no” and he put on a condom that he
retrieved from a dresser drawer in the bedroom. 7
After defendant left the room, Jane went to the restroom, locked the door, and
started crying. She did not know whether to tell someone about what had happened or
“bury it away ….” She saw that it was 2:00 a.m. and decided to call A.N. because she
knew that A.N. was still awake. Jane told A.N. about the rape. She cried as she talked to
5 Tressie testified that in Spanish “mi’ja” means “my daughter.”
6 Jane’s testimony that she said “no” or “stop” to defendant was impeached with her
prior statements to law enforcement that she did not tell him to stop. Ultimately, Jane
said that she believed that she told defendant to stop.
7 Jane testified both that defendant put a condom on before the intercourse and near
the end of the intercourse.
4.
A.N. A.N. told Jane to wake their mother immediately and tell her what had occurred.
Jane did so.8 A.N. called the police and immediately came home.
At some time between 1:00 a.m. and 3:00 a.m. on February 16, Jane woke Tressie.
Jane was shaking and crying. She handed Tressie a cell phone and told her that A.N.
wanted to talk to her. After Tressie talked to A.N., Tressie confronted defendant on the
front porch of the house regarding his having sexually assaulted Jane. Defendant initially
told her that nothing happened between he and Jane. Tressie asked him, “If nothing
happened, why did she say that” defendant had sex with her. Defendant responded that
Jane was “having one of those kind of dreams and touching [him] and rubbing up on
[him] and it made [him] feel uncomfortable and [he] got out of bed” and went to the front
porch.
Tressie reentered the house and spoke to Jane. Jane’s demeanor was the same—
she was “[c]rying, shaking, [and] scared to death.” Tressie then spoke to defendant
again. He admitted that “something did happen” between he and Jane, but he told Tressie
“I swear to God, I thought it was you.” Tressie testified that she did not sleep in
defendant’s bed on the night of February 15, but she had slept in his bed on the night of
February 14. Tressie had sex with defendant previously but when they had sex, they
never used a condom. Tressie testified that defendant had not called her “mi’ja” since
2000, when they became separated. However, the term “mi’ja” was commonly used
around the house to refer to Jane and A.N. Tressie also testified that in 2017, she
weighed approximately 240 pounds. In the same period, Jane weighed approximately
75 to 100 pounds less than Tressie. After Tressie confronted defendant, he asked her
multiple times not to call the police. He suggested that they could go to counseling and
8 Jane also testified that she spoke to her father outside of the house after having left
the bathroom. She then reentered the house and went to a vacant bedroom to call A.N.
From that bedroom, she then went to wake Tressie at A.N.’s insistence.
5.
“ ‘work this out as a family.’ ” A.N. had already called the police to report the incident.
When the police arrived, defendant was gone.
On February 16, the women moved into a motel. That day, defendant came to the
motel. Tressie had not told defendant where they were; in fact, she had lied and told him
that they were staying in a different motel. However, the women had stayed in the motel
prior to moving in with defendant and he was able to find them. He told Tressie that he
was angry because they had called the police. When A.N. saw defendant in the motel
parking lot, she shouted at him and told Tressie to call the police. Defendant told A.N. to
be quiet. She did not quiet down, and defendant attempted to hit A.N. in the head, neck
or shoulder9 and then ran away when Tressie began yelling that the police were on their
way.
The Investigation
In the early morning of February 16, Tressie and Jane went to the police station for
interviews. They met with Christina Abshire who was a detective with the Bakersfield
Police Department’s investigation division and special victims unit. Abshire began her
interview of Jane at 5:40 a.m. Jane told Abshire that defendant had sex with her against
her will. She told defendant to stop, told him that he could not ejaculate inside of her,
and attempted to push him off of her. Defendant “pinned” Jane’s arms down and
“smashed” her face into the bed. Defendant asked Jane “if she liked it, and she told him
no.” Defendant did not stop. 10 During the encounter, defendant called Jane “mi’ja” and
asked if she was a virgin. Defendant said, if she was a virgin “ ‘that’s hot.’ ”
Abshire also interviewed Tressie. Tressie confronted defendant about having sex
with Jane and defendant responded that he believed he was having sex with Tressie.
9 Tressie testified that defendant struck A.N. A.N. testified that defendant swung at
her but she moved away and he missed.
10 On cross-examination, Abshire acknowledged that, in the interview, Jane told her
that she did not immediately tell defendant to stop; “ ‘not until, like, [Tressie] coughed
6.
When he realized it wasn’t Tressie, he stopped and exited the room. While Tressie was
talking to Abshire, defendant called her. “He said, ‘Don’t you think I … feel bad for
what happened?”
In the afternoon on the same day, defendant called Abshire on the phone. He told
Abshire that he was trying to talk to Tressie and Jane to work out the incident. He
described the incident as a family matter and not a police matter. He acknowledged
having had sex with Jane, but stated he thought he was having sex with Tressie. He told
Abshire that Tressie frequently got up in the middle of the night, came to his bedroom,
and had sex with him. Defendant also said that he had not had sex in over a year because
he and his girlfriend were separated. Eventually, defendant agreed to meet Abshire at the
police station on February 17 at 9:00 a.m.
On February 16, Bakersfield Police Officer Timothy Berchtold conducted a search
of defendant’s home. In the kitchen, he found a cardboard box lined with a trash bag.
Inside the bag was a small orange plastic bag containing a used condom, an open condom
wrapper, and an empty cell phone box. Human semen was found inside the condom.
Defendant’s DNA was found on the inside of the condom and Jane’s DNA was found on
the outside of the condom.
Defendant did not meet Abshire at the police station on February 17 at 9:00 a.m.
On the afternoon of February 17, defendant called Abshire and told her that he would not
voluntarily come to the police station. Abshire obtained a search warrant allowing
sometime during the [intercourse] and the bed was shaking really loudly,’ ” did Jane say
“ ‘like, okay. You need to stop.’ ” At a later part of the interview, Jane said that she had
told defendant to stop but he did not stop.
7.
discovery of defendant’s location based on his cellular phone data. Undercover officers
located and arrested defendant based on that data.
The Evidence of Prior Sexual Misconduct
M.G. is Tressie’s daughter. Defendant is not her biological father, but she lived
with defendant for a time while he was married to her mother. M.G. ceased living with
defendant when she was six years old. M.G. described defendant having touched her
vagina on more than one occasion when she lived with him.
DISCUSSION
Defendant challenges the trial court’s admission of evidence of his prior
misconduct toward M.G. under Evidence Code section 1108. 11 Section 1108,
subdivision (a), provides an exception to section 1101, subdivision (a)—which generally
precludes the admission of evidence of specific incidents of prior misconduct to prove a
defendant’s propensity to engage in such misconduct—for prior sexual misconduct when
a defendant is charged with a sexual offense. Admission of evidence pursuant to
section 1108 requires a trial court to exclude the evidence, pursuant to section 352, if the
probative value of the evidence is substantially outweighed by the probability that its
admission will necessitate undue consumption of time, cause undue prejudice, confuse
the issues, or mislead the jury. Defendant contends the trial court abused its discretion in
admitting the evidence pursuant to section 1108 because the prior misconduct was
dissimilar from the charged offenses, remote in time, more inflammatory because it
involved a minor, and was likely to confuse the jury. The People disagree, as do we.
A. Background
The People gave notice before trial of their intent to present evidence of
defendant’s prior misconduct toward M.G. and another victim, B.S. The People
characterized the evidence of defendant’s sexual misconduct toward M.G. as follows:
11 All further statutory references are to the Evidence Code unless otherwise stated.
8.
In 1994, “[M.G.] was sleeping [in] the bed with her mother and the
defendant and some siblings. In the morning her mother and siblings left
the bed at which time the defendant reached into her underwear, touched
her vagina and inserted his finger into her vagina. The defendant then told
her ‘Don’t tell your mom or I’ll hurt you[.]’ ”
The People characterized the evidence of defendant’s sexual misconduct toward
B.S. as follows:
“In 2009[, B.S.] reported that he[r] step[-]father at the time[,
defendant,] had sexually assaulted her three separate times between the
ages of [nine and] 11. During one of the incidents B.S. was asleep on the
couch when she woke up to the defendant with his hands inside of her pants
and underwear[;] during this incident she stated that the defendant partially
inserted his finger into her vagina.
“During the second incident[, B.S.] was sleeping in her parents[’]
bedroom when she again woke up to the defendant with his hand inside of
her pants and underwear. During this incident the defendant kept his hand
inside of her underwear for approximately one minute.
“During the third incident[, B.S.] was laying on the floor when the
defendant again put his hand inside of her underwear and touched her
vagina.”
After hearing the parties’ arguments, the trial court explained its ruling. It
concluded that the alleged prior incidents of misconduct would constitute sexual offenses,
if true. It explained that the primary question before it was whether the evidence was
unduly prejudicial under section 352. It concluded that the evidence of prior misconduct
was very similar to the charged offenses, which lessened the probability of undue
prejudice. All of the incidents allegedly “took place while the alleged victims were
sleeping or at least in bed”; “[t]here was … essentially a parent/child relationship[]
between … defendant and each of the three young ladies”; and the comments defendant
made “to the alleged victims [were] also fairly similar in each of these cases.” Even
though B.S. and M.G. were minors when the alleged prior misconduct took place and
Jane was a young adult, the court concluded that the similarity of defendant’s conduct
9.
and the relationships between defendant and the victims were such that the probative
value outweighed the risk of undue prejudice.
Second, the trial court explained that while sexual misconduct against minors is
generally very inflammatory, those allegations were not substantially different in nature
from those at bar. Also tending to limit the inflammatory impact, both of the alleged
prior incidents of misconduct involved touching rather than intercourse. The trial court
concluded that the events involving Jane were the “most serious of the three.”
Third, the trial court concluded that, although the events had taken place many
years ago (approximately 23 years earlier as to M.G.), the fact that multiple incidents
took place with M.G. and B.S. suggested that the remoteness did not significantly limit
the probative value of the evidence.
Considering all of those factors, the trial court concluded that the probative value
of the evidence outweighed the potential for undue prejudice. In order to limit any risk
that the jury might punish defendant for prior misconduct, the trial court prohibited the
prosecutor from eliciting testimony regarding whether the prior misconduct resulted in
any conviction or punishment. The court explained that its limitation did not preclude the
prosecutor from eliciting testimony regarding whether the prior misconduct was reported
to law enforcement at the time. Such testimony, the court reasoned, would support the
credibility of the claims of prior misconduct.
B. Standard of Review
Section 1101 is the general rule that governs admissibility of character evidence,
including evidence of prior misconduct. It provides that character evidence, including
“specific instances of [a person’s] conduct,” is generally “inadmissible when offered to
prove [that person’s] conduct on a specified occasion” or “disposition to commit” a crime
or other wrongful act. (§ 1101, subds. (a) & (b).)
Before the enactment of section 1108, evidence of a defendant’s prior sexual
offenses, like other prior misconduct evidence, was generally inadmissible under
10.
section 1101. (See former § 1101, subd. (a), as amended by Stats. 1986, ch. 1432, § 1.)
But in 1995, the Legislature enacted section 1108 to expand the admissibility of this type
of evidence in sex offense cases. (§ 1108, subd. (a) [“In 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 [s]ection 1101, if the
evidence is not inadmissible pursuant to [s]ection 352.”]; People v. Falsetta (1999)
21 Cal.4th 903, 911 (Falsetta).) Section 1108 “allows evidence of the defendant’s
uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the
defendant’s disposition to commit such crimes.” (People v. Reliford (2003) 29 Cal.4th
1007, 1009.)
For evidence of prior misconduct to be admissible under section 1108, (1) the
defendant must currently be charged with a sexual offense, (2) the trial court must make a
preliminary factual determination that the prior misconduct constitutes a “sexual offense”
as defined by the statute, and (3) the evidence must not be otherwise inadmissible
pursuant to section 352. (§ 1108, subd. (a); People v. Cottone (2013) 57 Cal.4th 269, 281
(Cottone).)
As defined by section 1108, and as relevant here, a “sexual offense” includes rape
(§ 1108, subd. (d)(1)(A); Pen. Code, § 261), lewd or lascivious acts upon the body of a
child under the age of 14 (§ 1108, subd. (d)(1)(A); Pen. Code, § 288), and “[c]ontact,
without consent, between any part of the defendant’s body or an object and the genitals or
anus of another person,” (§ 1108, subd. (d)(1)(C)).12 A trial court makes findings of
12 Section 1108, subdivision (d)(1) provides: “ ‘[s]exual offense’ means a crime
under the law of a state or of the United States that involved any of the following: [¶]
(A) Any conduct proscribed by subdivision (b) or (c) of [s]ection 236.1, [s]ection 243.4,
261, 261.5, 262, 264.1, 266c, 269, 286, 287, 288, 288.2, 288.5, or 289, or subdivision (b),
(c), or (d) of [s]ection 311.2 or [s]ection 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of,
or former [s]ection 288a of, the Penal Code. [¶] (B) Any conduct proscribed by
[s]ection 220 of the Penal Code, except assault with intent to commit mayhem. [¶]
(C) Contact, without consent, between any part of the defendant’s body or an object and
11.
preliminary fact to determine whether the prior misconduct constitutes a “sexual offense”
by a preponderance of the evidence. (§ 405; Cottone, supra, 57 Cal.4th at pp. 283, 285–
286 [“when a defendant objects to the admission of [section] 1108 evidence on the
ground that the conduct does not amount to a crime, the court reviews any preliminary
fact necessary to that determination under section 405”]; see Cottone, at p. 289 [trial
court’s determination of a preliminary fact under § 405 is final and is not revisited by the
jury].)
If the prior misconduct constitutes a “sexual offense,” the trial court applies
section 352 to balance the probative value of the prior misconduct evidence against 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; see § 1101, subd. (a); § 1108, subd. (a); Falsetta, supra, 21 Cal.4th at
p. 911.) Five factors are “particularly significant” in an Evidence Code section 1108
analysis: “(1) whether the propensity evidence has probative value, e.g., whether the
uncharged conduct is similar enough to the charged behavior to tend to show the
defendant did in fact commit the charged offense; (2) whether the propensity evidence is
stronger and more inflammatory than evidence of the defendant’s charged acts;
(3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence
is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury
might be tempted to punish the defendant for his uncharged, unpunished conduct; and
(5) whether admission of the propensity evidence will require an undue consumption of
time.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) Under section 1108,
prior misconduct “evidence is presumed admissible and is to be excluded [under
the genitals or anus of another person. [¶] (D) Contact, without consent, between the
genitals or anus of the defendant and any part of another person’s body. [¶] (E) Deriving
sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on another person. [¶] (F) An attempt or conspiracy to engage in conduct described
in this paragraph.”
12.
section 352] only if its prejudicial effect substantially outweighs its probative value in
showing the defendant’s disposition to commit the charged sex offense or other relevant
matters.” (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova).)
We review the trial court’s findings of preliminary fact for substantial evidence
(Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637, 647–648), and we review the
court’s decision not to exclude evidence under section 352, in addition to its ultimate
decision to admit prior sexual misconduct evidence under section 1108, for abuse of
discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10; Cordova, supra, 62 Cal.4th
at p. 132.) A trial court abuses its discretion when its ruling falls outside the bounds of
reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
C. Analysis
1. The Prior Uncharged Misconduct and at Least One Charged Offense
Were Sexual Offenses
The incidents of prior uncharged misconduct—touching M.G. and B.S.’s
genitals—were sexual offenses within the meaning of section 1108 (§ 1108,
subd. (d)(1)(C)), as was the rape charged in the matter before us (§ 1108, subd. (d)(1)(A);
Pen. Code, § 261). The trial court’s conclusion that the prior and present offenses were
sexual offenses was supported by substantial evidence.
2. Section 352 Did Not Require Exclusion of the Prior Uncharged
Misconduct
Defendant contends the trial court should have excluded the prior misconduct
evidence under section 352. He raises five reasons.
First, defendant argues the prior misconduct evidence was not probative of his
disposition to commit the charged offenses because the prior offenses were not similar to
the charged offenses. We disagree. The prior misconduct evidence was very probative
of defendant’s propensity to commit the charged offenses because it was a prior sexual
offense (Falsetta, supra, 21 Cal.4th at p. 912) and because it was similar to the charged
13.
offenses.13 In each instance, defendant had some father/daughter relationship with the
victim, approached the victim while she was sleeping or in bed, and touched her genitals.
Moreover, while M.G. was only six years old at the time of the prior sexual misconduct,
Jane was also a young woman of 19 years of age at the time of the offense in this case.
Based on a comparison of the prior misconduct and the charged offenses, the trial court
reasonably concluded that the cases were “fairly similar,” albeit “not identical.” The
disparity in the age of the victims was not dispositive in light of the similarities. (People
v. Escudero (2010) 183 Cal.App.4th 302, 311.)
Second, defendant argues the prior misconduct evidence was not probative of his
disposition to commit rape because the prior misconduct only involved touching (and
perhaps digital penetration). Again, we disagree. As previously discussed, there was
good reason for the trial court to conclude defendant’s misconduct toward the prior
victims was similar. More to the point, as we discussed above, commission of a sexual
offense is probative of a disposition to commit other sexual offenses. (Falsetta, supra,21 Cal.4th at p. 912.)14 His prior sexual misconduct against those with whom he had a
father/daughter relationship was probative of his disposition to commit the charged
sexual offenses against Jane.
Third, defendant contends that the uncharged misconduct was significantly
remote, which eliminated any tendency for the evidence to show that defendant had a
propensity to commit the charged offense. We disagree. “ ‘No specific time limits have
13 We note that prior sexual offenses need not be similar to charged offenses to be
admitted pursuant to section 1108. (Cordova, supra, 62 Cal.4th. at p. 133.) However,
similarity is relevant to a trial court in exercising its discretion pursuant to section 352.
(Cordova, at p. 133.)
14 Although the evidence was not admitted under section 1101, we note that it was
probative for many of the purposes articulated in section 1101, subdivision (b).
Specifically, it was probative of defendant’s plan or the absence of mistake in defendant
having intercourse with Jane rather than Tressie.
14.
been established for determining when an uncharged offense is so remote as to be
inadmissible.’ [Citation.] ‘ “[S]ubstantial similarities between the prior and the charged
offenses balance out the remoteness of the prior offenses.” ’ ” (People v. Robertson
(2012) 208 Cal.App.4th 965, 992 [no error in admitting 34-year-old prior sexual assault
conviction]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [sex crime committed
23 years before current crime was admissible]; People v. Branch (2001) 91 Cal.App.4th
274, 284–285 [upholding admission of a sex crime committed 30 years before charged
offense].) While the prior incidents of sexual misconduct were remote (23 years prior as
to M.G.), they were not so remote as to be not at all probative in light of the similarities
to the charged offenses. Further, as the trial court correctly noted, the fact that the prior
incidents of sexual misconduct were repeated and involved two victims tended to support
the validity of the propensity inference, despite the age of the misconduct. (See People v.
Dworak (2021) 11 Cal.5th 881, 901 [the staleness of prior misconduct is generally only
relevant if the defendant has led a blameless life in the interim].)
Fourth, defendant contends the prior misconduct was more inflammatory than the
charged rape because the prior misconduct involved alleged sexual touching of a child.
Sexual touching of a minor stepchild is certainly egregious conduct. However, we cannot
conclude that the trial court erred in concluding that it was not particularly inflammatory
when compared against the rape of a biological young adult child. Indeed, the actual
testimony was very brief and “ ‘no stronger and no more inflammatory than the testimony
concerning the charged offenses.’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 144.)
Further, the trial court excluded any testimony regarding conviction or punishment for
the incidents of prior sexual misconduct to limit the risk of the jury punishing defendant
for his prior misconduct.
And fifth, defendant contends that the jury was probably confused by M.G.’s
statement that she “only spoke of one incident.” We disagree. In context, M.G.’s
15.
statement suggested that she only reported or told someone about one incident of sexual
touching.15
In sum, nothing about the evidence here required the trial court to find the
presumption in favor of admissibility had been overcome. We therefore conclude the
trial court did not abuse its discretion in deciding not to exclude the prior misconduct
evidence under section 352.
DISPOSITION
The judgment is affirmed.
15 The exchange reads as follows:
“Q. Do you remember if the [d]efendant ever put his hands or fingers
inside of your vagina?
“A. I cannot recall. I know that there were several occasions. [¶] … [¶]
But there are[—]there were two or three occasions I know. But because I
cannot recall them because I’ve—they are really hazy, I only spoke of
one incident and of that incident I know that he touched me. I don’t know
that there was any sort of insertion of any kind.”
16.