P. v. Aguilar

Filed 3/23/07 P. v. Aguilar CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Charles Diaz Aguilar appeals from a judgment entered after a retrial in which the jury found him guilty of unlawful sexual intercourse with a minor in violation of Penal Code section 261.5, subdivision (c). The trial court sentenced appellant to the midterm of two years in state prison. Appellant contends that admission of propensity evidence under Evidence Code section 1108,[1]deprived him of his right to a fair trial, due process, and equal protection. We affirm.

FACTS AND PROCEDURAL BACKGROUND

The underlying facts

Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

M.L. attended a high school music academy beginning in 1999 when she was 13 years old, until she graduated in 2003 at the age of 17. Appellant was a music instructor at the school. As a 15-year-old junior, M.L. had several classes with appellant, became his teachers assistant, and began having very personal conversations regarding family, friends, and appellants troubles with his girlfriend. During the summer of her junior year in 2002, M.L. and appellant began to go out, eat meals together, drive off campus, go to appellants house, and talk to each other for hours on the telephone.

M.L.s best friend K.S., and K.S.s mother, believed that something inappropriate was going on when they saw M.L. and appellant sitting close together at a Starbucks coffee shop located off-campus. K.S.s mother informed M.L.s mother as well as high school administrators of the incident. Appellants girlfriend found suspicious credit card transactions and phone calls to M.L.. She called M.L. and advised her to stop seeing appellant.

On October 10, 2002, M.L. told her friend J.G. that she had been having sexual intercourse with appellant. J.G. reported this conversation to another high school teacher, who arranged for J.G. to meet with the principal.

On October 15, 2002, Los Angeles Police Department Officers Lee and Llamas interviewed M.L. with her mother present. M.L. told them that she had been involved in a sexual relationship with appellant from May through July 2002. After the officers left, M.L. told her sister M.E. that she had dated appellant, was in love with him, and had sex with him.

Telephone records indicated that M.L. called appellant 26 times on October 15, 2002, and that appellant called M.L. several times. M.L. told appellant that she had told J.G. and the officers that she had had sex with him. Appellant told M.L. that he could lose his job and go to jail.

M.L. told a detective on October 17, 2002, that she had been in a sexual relationship with appellant, that appellants girlfriend became suspicious, and that appellant broke off the relationship because he did not want to arouse suspicion. M.L. described appellants residence and said that appellant provided condoms. She described her dates with appellant and the first time they had sexual intercourse. M.L. also told the detective that appellant had met his current girlfriend through high school where she had been a student, and they continued the relationship after she left high school.

Appellant was removed as a teacher at the high school in October 2002. On October 31, 2002, and again a few days later, M.L. told classmates that she did not have sex with appellant. M.L.s mother refused M.L.s request to take her to the police station so she could drop the charges against appellant. On November 19, 2002, M.L. went to the Van Nuys police station, and told Los Angeles Police Department Detective Luis Alarcon that she wanted to take back the statement that she had sex with appellant because she loved him and she still wanted to be with him.

The assistant principal of the high school testified that M.L. came to her office in January 2003 and told her that she loved appellant, but that he was pulling away from her. She told the assistant principal that she had been in a sexual relationship with appellant. The assistant principal called the police, who interviewed M.L. M.L. stated that she had a sexual relationship with appellant. Subsequently, she either refused to speak to investigators or told them that she did not have sex with appellant.

Appellant was arrested on January 14, 2004.

At trial, M.L. testified that she never was sexually involved with appellant, and that she had lied to everyone about having a sexual relationship with him.

The section 1108 evidence

I.Z. testified that she transferred to the high school as a second semester freshman in 1999, and attended the school until she graduated in 2001. In her sophomore year, appellant began flirting with her and complimenting her. In her junior year, appellant gradually began making cruder sexual remarks, comparing his sexual relationship with his girlfriend to having sex with I.Z. Appellant constantly asked her to go to lunch and dinner alone with him, and touched her leg during class. One time after a marching band performance, appellant gave her a ride home and stopped the car half a block away from her house. He told her she made his job difficult, and that at times he just wanted to grab her and kiss her. Appellant put his hand on her leg, and tried to kiss her. I.Z. got out of the car and ran home.

I.Z. believed that appellant was spreading rumors to other students that he was having a sexual relationship with her.

At the beginning of her senior year, I.Z. told her mother about appellants behavior. Her mother took her to the school, where I.Z. wrote a statement and talked to the director of the music academy and the vice principal. I.Z. was then removed from appellants classes.

DISCUSSION

I. The due process challenge to section 1108

1. Section 1108

Appellant urges that the trial court erred in admitting propensity evidence under section 1108 because it deprived him of his right to a fair trial, due process, and equal protection. We disagree.

We first note that federal constitutional claims involving the admissibility of evidence are not reviewable on appeal unless the defendant timely objected on those grounds in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116.) While appellant objected to the admission of I.Z.s testimony on the basis that the circumstances of I.Z. and M.L. were not similar, he did not object on the basis that section 1108 was unconstitutional. Appellant therefore, waived his right to raise federal constitutional arguments. Nonetheless, we also conclude that his arguments fail on the merits.

Enacted in 1995, section 1108 permits the introduction of propensity evidence related to the commission of another sex offense in a sex offense case. It provides, in relevant part: (a) 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.

2. Section 1108 does not violate the right to due process and a fair trial

We disagree with appellant that section 1108 improperly infringes on his right to due process and a fair trial.

The constitutionality of section 1108 was addressed and upheld by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta). In Falsetta, our Supreme Court noted that the Legislature enacted section 1108 in order to expand the admissibility of disposition or propensity evidence in sex offense cases, modeling section 1108 after rule 413 of the Federal Rules of Evidence (28 U.S.C.)[2]which permits evidence of the defendants commission of a sexual assault offense to be admitted in a criminal case in which the defendant is accused of sexual assault. (Falsetta, supra, 21 Cal.4th at p. 912.) Our Supreme Court noted that Federal Rule 414 allows similar propensity evidence in child molestation cases.

The Falsetta court determined that section 1108 does not unduly burden the defendant because it does not allow unrestricted admission of defendants bad acts, character or reputation, but is limited to the defendants sex offenses, and it applies only when he is charged with committing another sex offense. (Falsetta, supra, 21 Cal.4th at p. 916.) Moreover, judicial efficiency will not suffer under section 1108 because the trial court has the discretion under section 352 to preclude evidence that will necessitate undue consumption of time. Finally, the defendant will not be unduly prejudiced because section 352 mandates a careful weighing process.

Hence, in determining whether to admit or exclude a prior sex offense, the trial court must consider, among other factors, its nature, relevance, possible remoteness, and similarity to the charged offense. The trial court must examine the likely prejudicial impact on the jurors and the burden on the defendant in defending against the uncharged offense. (Falsetta, supra, 21 Cal.4th at p. 917.)

3. Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau) is neither binding nor relevant

Appellant urges that Falsetta must be reconsidered in light of Ninth Circuits holding in Garceau that other crimes evidence to infer criminal propensity violates the due process clause. (Garceau, supra, 275 F.3d at p. 776.) Appellants argument is not convincing.

First, a decision of a lower federal court interpreting federal law, is persuasive, but not binding. (People v. Avena (1996) 13 Cal.4th 394, 430.)

Second, Garceau did not concern the admissibility of prior sex offenses in a sex offense case. Rather, it concerned the introduction of evidence that the defendant had been convicted of murder in another case and testimonial evidence that he manufactured illegal drugs. (Garceau, supra, 275 F.3d at p. 773.)[3] Thus, it is not relevant to the instant discussion.

Third, in U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1031, the Ninth Circuit held that Federal Rule 414, which concerns admission of another offense of child molestation, is constitutional. Utilizing a rationale similar to that of the Falsetta court, the Ninth Circuit held that Federal Rule 414 does not violate due process, equal protection, or any other constitutional guarantee, in light of Federal Rule 403, which provides that relevant evidence may be excluded, among other reasons, if its probative value is substantially outweighed by the danger of unfair prejudice. (U.S. v. LeMay, supra, at p.1031.) Although it did not consider the constitutionality of Federal Rule 413, the similarity of the rationale to that of the Falsetta court is compelling.

We conclude that appellants argument must fail.

II. The equal protection challenge to section 1108

Appellant also challenges section 1108 on the basis that it violates his right to equal protection.

In concluding that due process protections were not violated by section 1108, the Falsetta court cited extensively from People v. Fitch (1997) 55 Cal.App.4th 172, 184, which also rejected an equal protection challenge on the basis that the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests. (Falsetta, supra, 21 Cal.4th at p. 918.)

We agree with the rationale and holding of People v. Fitch, supra, 55 Cal.App.4th at page 184 and conclude that appellants equal protection argument likewise fails.

Having so concluded, we need not address the Peoples argument that any error was harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, P. J.

BOREN

We concur:

______________________, J.

DOI TODD

______________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Evidence Code unless otherwise indicated.

[2] All further references to Federal Rules are to the Federal Rules of Evidence.

[3] Petition for certiorari in Garceau was granted and the matter reversed and remanded on the issue of the applicability of an anti-terrorism act in Woodford v. Garceau (2003) 538 U.S. 202.