P. v. Macias
P. v. Macias
Filed 8/4/08 P. v. Macias CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS JOSE MACIAS,
Defendant and Appellant. |
F053283
(Super. Ct. No. 06CM0694)
O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Virna L. Depaul, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Jesus Jose Macias of two counts of committing a lewd or lascivious act against a child under the age of 14 years (Pen. Code, 288, subd. (a); counts 1, 2). In a separate proceeding, appellant admitted allegations that he had suffered a strike[1]and a prior conviction that subjected him to a five-year enhancement under Penal Code section 667.51. The court imposed a prison term of 17 years, consisting of 12 years on count 1, representing the six-year midterm, doubled pursuant to the three strikes law (Pen. Code, 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus five years on the enhancement. The court imposed a concurrent 12-year term on count 2.
On appeal, appellant contends the court erred in admitting evidence of appellants prior conviction of a sex crime. We will affirm.
FACTS
Prosecution Case
On December 3, 2005, appellant babysat five-year-old J.L. and 14-month-old D.J. at their home in Lemoore while the childrens mother, M.J., and M.J.s husband went to a Christmas party. Appellants fianc at the time, S.E., is M.J.s sister.
M.J. and her husband returned home at approximately 8:00 p.m., and M.J. drove appellant home. When M.J. returned home, she found that pornographic pictures had been downloaded to her computer while she and her husband were at the Christmas party.
M.J. telephoned her sister, who then asked appellant if he had been viewing pornography on M.J.s computer. Appellant admitted that he had. The next morning, M.J. questioned J.L. who stated, [Appellant] touched my pee pee. J.L.s name for penis at that time was pee pee.
At that point, M.J. telephoned S.E. and told her what J.L. had said. S.E. then asked appellant if the accusation was true. After initially denying it, appellant admitted he touched the boys penis. He cried and said he was sorry, he had a problem and he needed help.
Later that day, appellant told S.E. the following. He was masturbating while viewing pornography on the computer when J.L. walked in the room and asked appellant what he was doing. At that point, appellant pulled down J.L.s pants and touched the boys penis.
Robin Hayes, a special agent with the Naval Criminal Investigative Service questioned appellant. After initially denying the accusation that he had sexually molested J.L., appellant stated, I did it. He stated he touched J.L. over his pants on his penis, and then put his hands inside J.L.s pants and masturbated him for 20 to 30 seconds.
In 2000 appellant was convicted of unlawful sexual intercourse with an incompetent person (Pen. Code, 261, subd. (a)(1)). On cross-examination, he testified that the victim in that case was mentally impaired, and, although she was an adult and 13 years older than appellant, she had the mental capacity of an eight-to-ten-year-old person.
Defense Case
Appellant testified to the following. He did not sexually molest J.L. nor did he tell S.E. that he did. He falsely admitted to Special Agent Hayes that he sexually molested J.L. because she told him she could help [him] out, get less time, make things easier, and by the time she questioned him it had been almost two weeks since the accusation, and he was sick, be it physically and mentally, and [he] was scared .
DISCUSSION
The court admitted into evidence, over appellants objection, certified records from the Department of Corrections and Rehabilitation of the kind commonly called a 969b packet showing that appellant had suffered a conviction in 2000 of unlawful sexual intercourse with an incompetent person.[2] The court ruled the challenged evidence was admissible under Evidence Code section 1108,[3]which provides: 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).)
Section 1108 is an exception to the general rule, codified in section 1101, that uncharged misconduct is admissible only for the purpose of proving some fact other than the defendants disposition to commit criminal conduct.[4](People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) As indicated above, section 1108 allows evidence of the defendants uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendants disposition to commit such crimes [provided such uncharged crimes evidence is not inadmissible pursuant to section 352]. (People v. Reliford (2003) 29 Cal.4th 1007, 1009.)
As appellant does not dispute, both the instant offenses and the uncharged act - appellants 2000 rape of an incompetent person - constitute sexual offense[s] within the meaning of section 1108, subdivision (a). ( 1108, subd. (d)(1).). Appellant argues, however, that evidence of the 2000 rape was inadmissible under section 352 because it bore no relevance to the charged acts and was extraordinarily prejudicial to [his] defense. We disagree.
Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial courts exercise of its discretion under section 352 must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.; accord, People v. Karis (1988) 46 Cal.3d 612, 637 [such discretion will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value; People v. Tran (1996) 47 Cal.App.4th 759, 771 [A trial courts exercise of discretion under Evidence Code section 352 will not be reversed unless it exceeds the bounds of reason, all of the circumstances being considered].)
We examine first the probative value of the uncharged-act evidence. Probative value goes to the weight of the evidence of other offenses. The evidence is probative if it is material, relevant, and necessary. [H]ow much probative value proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity). (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20.)
As to the degree of relevancy, [a] defendant with a propensity to commit acts similar to the charged crime is more likely to have committed the charged crime than another. (People v. Soto (1998) 64 Cal.App.4th 966, 989, emphasis added.) Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much. (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) In enacting ... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of section 1101. (People v. Yovanov, supra, 69 Cal.App.4th at p. 405.)
Appellant contends that the uncharged act and the instant offenses were highly dissimilar because J.L. was a five-year-old child whereas the victim of appellants 2000 rape was an adult, and therefore the uncharged act evidence was totally irrelevant. We disagree. As indicated above, the adult victim of appellants uncharged offense had the mental capacity of an eight-to-ten-year-old person. Thus that offense, like the instant offenses, was a sex crime committed against a vulnerable victim who lacked the capacity to consent and had a reduced capacity to resist. Accordingly, we conclude that the challenged evidence was highly relevant.
Moreover, the evidence was highly material because it tended to show appellant molested J.L., and therefore went to the central issue in the case. Finally, the evidence of the uncharged act had a fairly high degree of necessity, because the value of appellants admissions was called into question by appellants subsequent denial of all culpability, and the prosecution case depended in no small part, ultimately, on the statements of a five-year-old child to his mother.
As to the prejudice side of the equation, we agree the challenged evidence was highly prejudicial. However, the prejudicial effect of this evidence was mitigated by the fact that appellant was convicted of the 2000 crime. As the court stated in People v. Falsetta (1999) 21 Cal.4th 903, the prejudicial impact of [uncharged act] evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jurys attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. (Id. at p. 917.) Given this factor, considered in conjunction with the high probative value of the evidence in question, we conclude appellant has not met his burden of overcoming the presumption ... in favor of admission. (People v. Soto, supra, 64 Cal.App.4th at p. 984.) The admission of the uncharged-act evidence was well within the courts discretion.
Appellant also argues that the admission of that evidence violated his due process rights. There is no merit to this contention. Where, as here, evidence of prior uncharged sexual offenses is admitted pursuant to section 1108 and the evidence is not made inadmissible pursuant to section 352, the admission of such evidence does not violate the defendants due process rights. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) Appellant concedes that under Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455 we are bound to follow Falsetta, and raises this claim only to preserve the issue for federal review.
DISPOSITION
The judgment is affirmed.
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*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
[1] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12, subd. (c)(1)), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
[2] Penal Code section 969b provides that records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which [defendant] has been imprisoned may be used to establish prima facie evidence of prior convictions, provided such records or copies thereof have been certified by the official custodian of such records, .
[3] All further statutory references are to the Evidence Code.
[4] Section 1101 provides in pertinent part: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, 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. [] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
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