P. v. Battle

Filed 10/28/09 P. v. Battle 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Craig Reimer, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robin Derman and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Boyce Cornelius Battle appeals his jury conviction for a lewd and lascivious act upon a child under the age of 14. (Pen. Code 288, subd. (a).) On due process grounds, defendant challenges the trial courts admission of prior acts evidence during his trial.

FACTUAL AND PROCEDURAL BACKGROUND

The victim in this case was defendants niece, who was six years old at the time of the incident and eight years old when she testified at defendants trial. She recalled riding to the store in the middle of the backseat of a car in between defendant and her younger brother, who was sitting in a car seat. Her mother, who was driving, was in the front seat with her grandmother. During the ride, the radio was on and there was talking inside the car. Defendant reached over and rubbed his hand on the victims private area between her legs and over her clothes. She told him to stop, but she does not think anyone else in the car heard her say that. She did not tell her parents what happened, because defendant told her, Snitches go to h-e double-l, so she was afraid. The victim eventually told her cousin that defendant touched her privates. The cousin testified she was present when defendant told the victim, Snitchers go to hell. The victims mother learned of the incident from her sister, and reported it to police.

Another niece, who was 20 years old at the time of trial, testified about an incident involving defendant that occurred when she was 14 years old. She recalled waking up and feeling someone licking and touching her. Although she felt an erect penis against her, there was no penetration. At first she thought she might be dreaming, but when she felt someone trying to forcefully take her pants off, she jumped up. She then saw defendant getting up and walking out of the room like nothing had happened. The parties stipulated defendant had previously pled guilty to committing a lewd and lascivious act on a 14-year-old child in violation of Penal Code section 288, subdivision (c)(1), and the stipulation was read to the jury.

DISCUSSION

Defendant contends the admission of testimony involving prior sexual misconduct with his 14-year-old niece violated his right to due process. This evidence was admitted pursuant to Evidence Code sections 1108 and 352. At the same time, the court excluded evidence of two other incidents that had never been adjudicated and were more remote in time. The court found the risk of prejudice as to these other two incidents outweighed the probative value.

For purposes of preserving the issue for federal review, defendant contends Evidence Code section 1108 is unconstitutional because it allows admission of evidence that was considered inadmissible and unreliable at common law. As defendant concedes, the California Supreme Court rejected a due process challenge to Evidence Code section 1108 in People v. Falsetta (1999) 21 Cal.4th 903, 922, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject defendants contention that a prior act of sexual misconduct was admitted against him at his trial in violation of his right to due process.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

GAUT

J.

KING

J.

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