Filed 3/1/18 P. v. Alvarado 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

VICTOR ALVARADO,

Defendant and Appellant.

F072639

(Super. Ct. No. F14910259)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Arlan H. Harrell, Judge.
Hilda Scheib, under appointment by the Court of Appeal, Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
—ooOoo—



Victor Alvarado appeals from his conviction for committing a lewd act on a child under the age of 14. He argues a confession the police obtained from him in this case was involuntary and was erroneously admitted into evidence, thereby violating his due process rights. He further argues evidence of a prior, uncharged sex offense was also erroneously admitted into evidence, again leading to a violation of due process. We reject both of these contentions. Alvarado finally argues the trial court erroneously ordered him to submit to an AIDS test. The People concede the issue. We will remand the matter for further proceedings in this regard, at the election of the prosecution. In all other respects, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Alvarado was charged with, and convicted by a jury of, committing a lewd act on a child under the age of 14, in violation of Penal Code section 288, subdivision (a). He was sentenced to the upper term of eight years in prison. He was also ordered to register as a sex offender pursuant to section 290 and to submit to an AIDS test under section 1202.1.
The Incident Underlying the Charge
S was 11 years old and in the sixth grade, when this matter went to trial in September, 2015. In 2013, when she was in the fourth grade, she became friends with A, a classmate from school. Alvarado was A’s stepfather. S’s parents were casual friends with A’s mother, Nereida G., and with Alvarado. Towards the end of 2013, S attended the birthday party of A’s young cousin. The party was at A’s house. S slept over at A’s house that night.
At some point that evening, A, S, and other children watched a movie in the living room. S lay down on the couch, which was “small” and “two-cushioned.” As S was drifting off to sleep, Alvarado sat down on the couch as well; he lifted S’s feet and placed them on his lap. Eventually, Alvarado unzipped S’s pants and touched her “front” “private area,” over her underwear. Feeling “sad” and “scared,” S got up and went to the bathroom. She wanted to check whether her perception of events was “real” or “imagined.” She concluded her perception of events was correct because, although her pants were buttoned, the zipper was down. S was still feeling scared, so she woke up A’s aunt, Rashell, and told her what had happened. In the morning, S also told A that Alvarado had touched her.
About eight months later, just before she was to start fifth grade, S told her mother, Christina S., about the incident. Christina had asked S whether “anybody had [ever] touched her or made her feel uncomfortable.” S began to sob, and, between sobs, revealed that Alvarado had touched her inappropriately. Christina testified: “[S] said [Alvarado] came to the living room where she was asleep on the couch and asked her to scoot over and she scooted over and she said that he started to get in her pants, unbuckle her – unsnap her pants and undo her zipper.” Christina called the police the same day.
Alvarado’s Confession
The prosecution played a videotaped police interrogation of Alvarado for the jury. The interrogation was conducted by Detectives Wilkin and Sweeten at the Fresno Police Department. The detectives advised Alvarado that he was under arrest and advised him of his Miranda rights. In the course of the interrogation, Alvarado explained that he was sexually abused by his father from a very young age and that he, himself, was sexually attracted to young girls but not boys.
Alvarado also acknowledged many of the details of the incident involving S. He admitted he had touched S’s vagina over her underwear, as she lay on the couch at the end of the birthday party for A’s cousin. He said S initially touched his crotch with her foot, making him feel she was leading him on. After he touched her vagina, she again touched his crotch with her foot, giving him a momentary erection; he immediately got up because he felt bad. Alvarado said he knew his actions were wrong and he had already apologized to S.
When questioned about his stepdaughter, A, Alvarado described an incident when he found her and her teenaged brother naked in each other’s presence. Alvarado said he had sat them both down and explained that the brother should not touch his sister’s vagina; Alvarado physically touched A’s vagina to make his point.
Alvarado said what happened with S was the “wors[t]” thing he had “ever done”; he said it seemed like “killing an innocence.” Alvarado said he knew his attraction to young girls was wrong; it made him feel “like someone” was “taking all [his] insides out – pulling them out.” He said he needed psychiatric help. At the end of the interrogation, Alvarado wrote a note of apology to S; the note was admitted into evidence at trial. In the note, Alvarado said he “felt very bad” about and was “very sorry” for “what happen[ed],” adding that it would “never happen again.”
Alvarado’s Trial Testimony
At trial, Alvarado, who was 31 years old by then, testified in his own defense. Alvarado described the incident with S that occurred at the birthday party for A’s cousin. He testified that S was lying on the small couch in his living room; he sat down on the couch as well and S swung her feet on top of his legs. He continued: “She began moving her foot in circle size around my private parts.” He added: “I got an erection for a few seconds and moved my hand towards her body, and then I [got] up.” On cross-examination, Alvarado clarified he was not going to touch S inappropriately; rather, he had reached out, reflexively, to move her away. In the end, he just jumped off the couch and went to bed in his room. He did not tell his wife what had happened because he did not want A to lose her best friend.
Evidence of a Prior Incident Admitted Under Evidence Code Section 1108
N.R. and Alvarado are cousins. Alvarado lived with N.R.’s family for a time. Alvarado later lived with his grandparents, who are also N.R.’s grandparents. In 2002, when N.R. was 16 years old, she slept over at her grandparents’ house one night. N.R. fell asleep on the living room couch, and awoke to find Alvarado’s hands “on [her] vagina,” over her clothes. N.R. asked Alvarado what he was doing but he did not respond. N.R. jumped off the couch and called her mother. Later, at her mother’s house, N.R. talked to a police officer about the incident.
At trial, Alvarado was questioned about the incident with N.R. He testified that the only sexual interaction he ever had with N.R. entailed her trying to kiss him “down the street” from their grandparents’ house. He testified that N.R. did not like him because he had lived with her family, which led to her parents divorce.
DISCUSSION
I. Voluntariness of Confession Obtained During Police Interrogation
As outlined in the factual summary above, during his videotaped police interrogation, Alvarado admitted he touched S’s vagina, over her underwear, as he sat with her on a couch in his living room. Alvarado now challenges the admissibility of the confession. He contends the detectives employed a number of lies and ruses to extract the confession, including: (1) DNA evidence had confirmed his guilt; (2) his family was cooperating with the police investigation and had incriminated him; and (3) he had been arrested for, and charged with, sexual battery of his cousin, N.R., in 2002. Alvarado argues his conviction must be reversed because the detectives’ use of these “false and deceptive statements and techniques” rendered his confession involuntary and, in turn, inadmissible. He contends its admission violated due process.
As Alvarado concedes in briefing and acknowledged at oral argument, defense counsel did not raise the issue of voluntariness of Alvarado’s confession in the trial court. Accordingly, on appeal, Alvarado has forfeited any objection, on involuntariness grounds, to admission of his confession. Even were the issue preserved for review, as discussed below, it fails on the merits.
A. Applicable Law
Where the facts surrounding a challenged confession are undisputed, as is the case here, we independently review the questions of the existence of coercive police activity and voluntariness. (People v. McWhorter (2009) 47 Cal.4th 318, 346 (McWhorter) [facts surrounding an admission or confession are undisputed to the extent the interview is tape-recorded]; People v. Benson (1990) 52 Cal.3d 754, 779.)
“The Fourteenth Amendment to the federal Constitution and article 1, section 15 of the state Constitution bar the prosecution from using a defendant’s involuntary confession.” (People v. Massie (1998) 19 Cal.4th 550, 576; Jackson v. Denno (1964) 378 U.S. 368, 376.) “‘A statement is involuntary if it is not the product of “‘a rational intellect and free will.’” [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s “will was overborne at the time he confessed.”’” (McWhorter, supra, 47 Cal.4th at pp. 346-347.) In evaluating whether a defendant’s will was overborne, we consider the totality of the circumstances under which the confession was obtained. (People v. Cruz (2008) 44 Cal.4th 636, 669; People v. Linton (2013) 56 Cal.4th 1146, 1154 (Linton).) The prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Markham (1989) 49 Cal.3d 63, 71.)
“‘A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it “does not itself compel a finding that a resulting confession is involuntary.” [Citation.] The statement and the inducement must be causally linked.’” (McWhorter, supra, 47 Cal.4th at p. 347.) In other words, the coercive police conduct must be the “motivating cause” of the challenged confession. (Linton, supra, 56 Cal.4th at 1176-1177; People v. Williams (1997) 16 Cal.4th 635, 661.)
B. Relevant Background
Here, Alvarado argues, and the People do not dispute, that the police used false or exaggerated characterizations of the evidence gathered in the course of the investigation, to encourage Alvarado to confess. Specifically, as stated above, Alvarado contends the detectives indicated, falsely, that (1) DNA evidence gathered and tested in the course of the investigation had connected Alvarado to the crime; (2) Alvarado had been convicted of sexual assault and placed on probation in the 2002 matter involving N.R.; and (3) Alvarado’s family had cooperated with the police investigation and incriminated him.
The record supports the parties’ acknowledgment that the detectives used deceptions and inaccurate characterizations of the evidence in interrogating Alvarado. Detective Wilkin testified in a 402 hearing that the police had no DNA evidence related to this case and that the detectives’ references to DNA evidence constituted an investigative ruse or ploy. Wilkin also noted, at the 402 hearing and in subsequent testimony, that in interrogating Alvarado, he had inaccurately stated that Alvarado was convicted of sexual assault on the basis of the 2002 incident involving N.R.; in reality, Alvarado had suffered no such conviction or any attendant consequences. Finally, the record shows that the detectives’ representations regarding statements obtained from Alvarado’s family were also false.
1. Detectives’ References to DNA Evidence
In interrogating Alvarado, Detectives Wilkin and Sweeten repeatedly suggested, falsely, that DNA tests had conclusively linked Alvarado to the crime. When Detective Wilkin first asked whether Alvarado had touched S inappropriately, Alvarado denied doing so. Wilkin responded: “Okay. Is there any reason that the results of the DNA test that we’re conducting on the – on [S’s] underwear, um, are gonna come back with your DNA on it?” Alvarado replied: “No, I didn’t do nothin’ like that.” Later in the interrogation, Wilkin and Alvarado had the following exchange:
“[Wilkin]: What do you think those DNA results were? Why do you think you’re sitting in this room right now?
“[Defendant]: Because you guys think I …
“W: What do you think?
“D: Touched the girl.
“W: What do you think those DNA results were?
“D: They weren’t, ah, mine.
“W: Do you think DNA was found on [S’s] underwear?
“D: No. It was? How’s that?
“[Sweeten]: Here’s – here’s the thing Victor you keep saying ‘cause you think I did this. It’s not that we think…
“D: Oh.
“S: It’s that we know and we have to get down to the why. [¶] … [¶] We’re trying to understand the why because we know what happened. We’re affording you the opportunity to tell us why it happened. Why you think, ah, this happened to you and you made this mistake. We know what happened let’s get past this okay?
“D: Yeah.
“S: Do you think that’s why because of what happened when you were younger …? Do you think that played a role in why you touched, ah, [S’s] vagina? Do you think it plays a role?
“D: Well [S] had touched me first and then …
“S: That night?
“D: Yeah.
“S: Where?
“D: On my privates.”
Shortly thereafter, Alvarado admitted he had touched S’s vagina “on top of the blanket.” The detectives then insisted that DNA evidence showed Alvarado had touched S’s vagina, not through a blanket, but rather “over the underwear” or “under the underwear.” At that point, Alvarado confessed he had touched S “over” her underwear.
2. References to Alleged Sexual Assault Conviction and Related Probationary Sentence
In interrogating Alvarado, Wilkin repeatedly stated he had court paperwork regarding a 2002 incident involving Alvarado and N.R. Wilkin insisted Alvarado was arrested in 2002 for sexual battery, pleaded to a misdemeanor, and was sentenced to probation. None of Wilkin’s assertions were true and, indeed, Alvarado contested their veracity until Wilkin ended the discussion of the issue:
“[Wilkin]: I have a case here from 2002 where you were listed as the suspect in a sexual assault.
“[Defendant]: Are you serious?
“W: Yeah. Victor Alvarado … you’re 19 years old okay? Against, ah, [N.R.] okay? And you’re aware of this case because you were placed on probation for it.
“D: I wasn’t – I was – I had no probation about that.
“W: You were. You were on informal probation. I have all the paperwork to prove it. Okay you went to court okay? You were put on (unintelligible) or informal probation and you – and you did your time okay?
“[Defendant]: When was this?
“W: But the problem – the problem with this case, you know when this – this was Victor and the problem with this – this was 2002 okay? And the problem with this is that the girl you touched, okay, was also in the same situation that [S] was. So here’s the deal. We – we know that this happened okay. [¶] … [¶]
“D: Can I see that? [¶] … [¶]
“W: What do you – what do you want to see on it[?]
“D: I don’t know. It’s just crazy because…
“W: Well I can’t because there’s confidential information that I can’t hand it to you.
“D: Yeah I know. I’ve never seen it.
“W: I trust you.
“D: I’ve never seen nothing like that before in my – in my papers.
“[Sweeten]: You remember [N.R.]? [¶] … [¶]
“D: Yeah [N.R.’s] my cousin.
“W: Yeah and so here’s the deal okay? Look …
“D: That’s crazy … [¶] … [¶] I didn’t even know it happened. [¶] … [¶] Yeah I remember going to jail for … [¶] … [¶] … crystal meth in there but …
“W: Okay, you do remember it happening so we need to stop that okay? You remember it happening. Nobody forgets when they get arrested for a sexual battery – nobody forgets that okay?
“D: I didn’t get arrested though for sexual battery.
“W: [B]ut you went to court for it okay? You went to court for it. Let’s stop arguing …
“D: No I didn’t go to court for it.
“W: Yes you did okay. I’m gonna stop you right there [¶] … [¶] because that’s not the point. We all know that you went to court for it [¶] … [¶]… because your signed name – your signature is on [¶] … [¶] court paperwork showing that you went to court and you accepted the misdemeanor …
“D: I’ll….
“W: …probation okay? So let’s stop that.
“D: All right.”
3. References to Cooperation by Alvarado’s Family with Police Investigation
In addition to the false references to DNA tests and a prior sexual assault conviction, the detectives further insisted, also falsely, that Alvarado’s family had cooperated with the police investigation and incriminated him in the crime. During the interrogation, Wilkin told Alvarado that Nereida, Rashell, and A had “all” confirmed that the incident with S did in fact occur as described by S. Wilkin further advised Alvarado: “[N]obody said anything because they were afraid of you because you have a violent temper, okay?”
C. Analysis
Applicable case law makes clear that police tactics such as trickery, deceit, or lying to a defendant are permitted practices, unless they are “‘“‘reasonably likely to procure an untrue statement.’”’” (People v. Williams (2010) 49 Cal.4th 405, 443 (Williams); People v. Maury (2003) 30 Cal.4th 342, 411 [“[police deception] does not necessarily invalidate an incriminating statement”]; People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [police may properly “utilize deceptive stratagems to trick a guilty person into confessing”].) “‘“The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.”’” (Williams, supra, at p. 443.)
Here, Alvarado’s entire interrogation was videotaped, bringing it into the full light of day. Furthermore, there is no dispute between the parties that in interrogating Alvarado, the police mischaracterized the strength of the evidence of his guilt. Nonetheless, Alvarado’s claim fails because courts have repeatedly upheld the voluntariness of confessions in situations where police employed deceptions and trickery in the underlying interrogations. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 732, 737, 739 [police falsely told suspect that his accomplice had implicated him]; People v. Smith (2007) 40 Cal.4th 483, 505-506 [police insisted, falsely, that results of gun powder residue test linked suspect to murder]; People v. Jones (1998) 17 Cal.4th 279, 299 [“detective implied at various times that he knew more than he did or could prove more than he could”]; People v. Thompson (1990) 50 Cal.3d 134, 167 [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide].) Nor was the interrogation coercive in any other respect. It was only about one hour in length and the demeanor of the police officers was professional throughout its course.
In short, the instant record does not disclose coercive conduct of the sort that would tend to produce an unreliable confession from a defendant; nor does it suggest that Alvarado’s will was overborne. For example, in the face of the detectives’ unyielding, if misplaced, insistence that Alvarado was arrested, convicted, and sentenced to probation for the 2002 incident involving N.R., Alvarado remained adamant that he had never been convicted of sexual assault for that incident or otherwise. Alvarado also steadfastly denied ongoing abuse of his stepdaughter, A (beyond a limited and ambiguous incident), although the detectives repeatedly pressed the issue, even suggesting, falsely, that A had reported sexual misconduct. This record indicates that Alvarado’s statements were the product of a “‘“rational intellect and free will.”’” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1401.)
Under the totality of the circumstances—including the facts that Alvarado’s education did not extend beyond the ninth grade; he worked as a part-time construction worker and landscaper; and, based on his criminal history, probably had limited experience with police interrogation—we conclude his will was not overborne by the detectives’ mischaracterization, during the instant interrogation, of the evidence against him. Alvarado’s confession, in turn, was voluntary and its admission did not violate due process.
In light of our conclusion, Alvarado’s claim of ineffective assistance of counsel also fails. Alvarado argues defense counsel was ineffective for failing to object, on involuntariness grounds, to admission of his confession. However, counsel’s failure to raise a meritless objection did not render counsel’s performance deficient, nor did it prejudice Alvarado.
II. Admission of Evidence of Uncharged Sex Offense
Alvarado contends the trial court prejudicially erred in admitting, pursuant to Evidence Code sections 1108 and 352, N.R.’s testimony about prior, uncharged sexual conduct by him, thereby violating his due process rights. N.R., who was 28 years old at the time of trial, testified that in 2002, when she was 16 years old and Alvarado 19 years old, he touched her vagina over her clothes while she slept on a couch in their grandparents’ house. We conclude the trial court properly admitted this evidence under Evidence Code sections 1108 and 352, and, therefore, reject Alvarado’s claims of error and a due process violation. Further, even were we to assume the trial court erred, the error would be harmless.
A. Background
At trial, the prosecution sought to introduce N.R.’s testimony about a prior, uncharged sex offense committed by Alvarado. Defense counsel objected on grounds that the uncharged sex offense was sufficiently distinct and remote from the charged crime so as to render N.R.’s testimony more prejudicial than probative under Evidence Code section 352. The trial court disagreed, noting that the prior, uncharged sex offense was both very similar to the charged offense and “not overly remote.” The court concluded the probative value of the evidence “substantially outweigh[ed] any prejudicial effect” and admitted it.
B. Analysis
We review a trial court’s rulings under Evidence Code sections 1108 and 352 for abuse of discretion and will not disturb the trial court’s determination unless the court acted in an arbitrary, capricious, or patently absurd manner. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Branch (2001) 91 Cal.App.4th 274, 281-282.)
Generally, evidence of prior bad acts is inadmissible to show a defendant’s criminal disposition or propensity to commit crimes. (Evid. Code, § 1101, subd. (a).) As an exception to the general rule, Evidence Code section 1108 permits, in sex offense cases, admission of uncharged sexual conduct precisely to show a defendant’s propensity to commit similar sex crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) Evidence Code section 1108 is geared to assist the trier of fact in making difficult credibility determinations, given that sex offenses are usually committed in seclusion, without third party witnesses or substantial corroborating evidence. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164; Falsetta, supra, at p. 915.)
However, evidence that is admissible under Evidence Code section 1108 is nonetheless subject to exclusion under Evidence Code section 352. Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by 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.” (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 [“A careful weighing of prejudice against probative value under [Evidence Code] section 352 is essential to protect a defendant’s due process right to a fundamentally fair trial.”].) The trial court is best situated to evaluate the evidence at issue through the lens of section 352, and, accordingly, enjoys broad discretion in applying the statute. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Furthermore, “‘“[t]he prejudice [that] Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.”’” (People v. Eubanks (2011) 53 Cal.4th 110, 144.) Rather, Evidence Code section 352 is designed to avoid “undue prejudice” because “the ultimate object[ive] of the section 352 weighing process is a fair trial.” (People v. Harris (1998) 60 Cal.App.4th 727, 736.) In evaluating the admissibility of evidence of prior uncharged sexual conduct, the court must ensure that “‘[t]he testimony describing defendant’s uncharged acts … [is] no stronger and no more inflammatory than the testimony concerning the charged offenses.’” (Id. at p. 738.)
Here, the trial court properly admitted the proffered propensity evidence under Evidence Code section 1108. As the California Supreme Court explained in People v. Loy (2011) 52 Cal.4th 46, 63, “‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough that the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.’” Here, both parties agree that the charged offense and the uncharged sexual conduct qualify as “sexual offenses” under Evidence Code section 1108, subdivision (d).
The trial court also properly admitted the propensity evidence under Evidence Code section 352. Alvarado argues the trial court erred because the propensity evidence had minimal probative value on account of its remoteness and the fact that, strictly speaking, it was not a child molestation offense. We are not persuaded. First, the uncharged sex offense at issue occurred in 2002, while the charged offense took place in 2013. Since the uncharged sex offense occurred only about a decade before the charged offense, we cannot say it was too remote to have much probative value. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1099 [“No specific time limit exists as to when an uncharged crime is so remote as to be excludable.”].) Courts have admitted evidence of prior uncharged sexual offenses that were far more remote than was the case here. (See People v. Pierce (2002) 104 Cal.App.4th 893, 900 [evidence of 23-year-old rape conviction properly admitted]; People v. Branch, supra, 91 Cal.App.4th at p. 284 [evidence of a 30-year-old sex offense was properly admitted]; People v. Soto (1998) 64 Cal.App.4th 966 [same].) Secondly, the fact that the uncharged offense, unlike the charged offense, may not qualify as child molestation, does not render it largely irrelevant, as Alvarado contends, because it nevertheless tends to show a propensity to engage in sexually predatory conduct. (See People v. Escudero (2010) 183 Cal.App.4th 302, 311 [in child molestation case, evidence of the defendant’s prior uncharged sexual offenses against adult women was admissible because they demonstrated a propensity to engage in sexually predatory conduct].) Third, here there were substantial similarities in the way the offenses were executed, specifically Alvarado touched S and N.R. when each was asleep and in a vulnerable position. Finally, Alvarado complains that the probative value of the proffered propensity evidence was undermined by the fact that its reliability was questionable, as no charges were ever filed. This contention too is unavailing in light of the express purpose of Evidence Code section 1108, i.e., to make propensity evidence in the form of prior charged and uncharged acts admissible in sex crime cases.
Furthermore, any potential for juror confusion created by admission of the propensity evidence was offset by the court’s instructions on the elements of the charged offenses, reasonable doubt, and the proper use of propensity evidence. (See People v. Frazier (2001) 89 Cal.App.4th 30, 42 [risk of juror confusion may increase when evidence of uncharged offenses is admitted but the risk is counterbalanced by appropriate instructions]; see also CALCRIM No. 1191.) Nor was the prior uncharged sex offense at issue more inflammatory than the conduct encompassed by the charged offense.
We conclude the trial court properly admitted the evidence of the prior, uncharged sexual conduct and, therefore, reject Alvarado’s claims of evidentiary error and a due process violation. Further, in light of the instant record, even were we to assume the trial court erred in admitting the challenged evidence, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818; Harris, supra, 60 Cal.App.4th at p. 741 [applying Watson standard to sexual offense propensity evidence admitted under Evid. Code, § 1108]; Falsetta, supra, 21 Cal.4th at pp. 924-925 [same].)
III. Trial Court’s Order for an AIDS Test
The trial court ordered Alvarado to submit to an AIDS test. The parties, however, agree that the trial court’s order was not supported by probable cause and must be vacated. We agree with the parties and will remand the matter for further proceedings in this regard.
Section 1202.1, subdivision (a) requires the trial court to order designated persons to “submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS) within 180 days of the date of conviction.” The statute applies to persons who are convicted of violating section 288 (as Alvarado was), provided the trial court “finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.” (§ 1202.1, subd.(e)(6)(A)(iii).) With respect to section 1202.1, probable cause is established when the facts of the case “would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.” (People v. Butler (2003) 31 Cal.4th 1119, 1127 (Butler).)
The People agree with Alvarado that “there is no evidence in the record suggesting that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from [Alvarado] to [S].” We will vacate the court’s order for AIDS testing and remand the matter “for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause.” (Butler, supra, 31 Cal.4th at p. 1129.) Although Alvarado suggests remand is unnecessary as the record is unequivocal there was no transference of bodily fluids between Alvarado and S, we will apply the remedy delineated by our Supreme Court in Butler.
DISPOSITION
The trial court’s order requiring Alvarado to submit to AIDS testing is vacated and the matter remanded for further proceedings consistent with this opinion, at the election of the prosecution. The judgment is affirmed in all other respects.


SMITH, J.
WE CONCUR:



DETJEN, Acting P.J.



PEÑA, J.