Filed 2/6/18 P. v. Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FRED GONZALES,

Defendant and Appellant.

F072520

(Super. Ct. No. MCR043440)


OPINION

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
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Fred Gonzales appeals from his convictions for eight sex offenses against his three step-granddaughters, as well as his sentence of 502 years to life. He argues that his convictions must be reversed because the trial court erroneously admitted propensity evidence under Evidence Code sections 1108 and 352. He further argues that his sentence of 502 years to life must be vacated and the matter remanded for resentencing, because a sentence that exceeds human life expectancy, as his does, serves no valid penological purpose and is unconstitutional under the Eighth Amendment. We reject both of these contentions.
At Gonzales’s sentencing hearing, the court had issued a protective order, apparently under Penal Code section 136.2, subdivision (a), prohibiting Gonzales from contacting the complaining witnesses and their mother. Gonzales argues that this protective order is unauthorized, as protective orders pursuant to section 136.2, subdivision (a), are not valid after imposition of a county jail or state prison commitment. We agree and will remand the matter for the trial court to vacate the existing criminal protective order and to issue a modified protective order under section 136.2, subdivision (i)(1). The judgment is affirmed in all other respects.
FACTS AND PROCEDURAL HISTORY
Gonzales was charged in a second amended information (information) filed in the Madera County Superior Court, with eight sex offenses committed against his three step-granddaughters, Al.R., Ad.R., and An.R., all of whom were minors at the time the offenses were committed. Four of the charged counts related to Al.R., two related to Ad.R., and two related to An.R.
As to Al.R., Gonzales was charged with one count of aggravated sexual assault on a child with sexual penetration, one count of aggravated sexual assault of a child with oral copulation, and two counts of lewd and lascivious acts upon a child under the age of 14 by use of force or fear. (Counts 1-4; §§ 269, subd. (a)(4), (5); 288, subd. (b)(1).)
As to Ad.R., Gonzales was charged with one count of lewd and lascivious act upon a child under the age of 14 by use of force or fear and one count of assault with intent to commit rape during the commission of a burglary. (Counts 5-6; §§ 288, subd. (b)(1); 220, subd. (b).)
As to An.R., Gonzales was charged with one count of lewd and lascivious act upon a child under the age of 14 and one count of attempted aggravated sexual assault of a child with oral copulation. (Counts 7-8; §§ 288, subd. (a); 664/269, subd. (a)(4).)
The information also alleged that Gonzales had committed sex offenses against multiple victims within the meaning of section 667.61 and that he was a habitual sex offender within the meaning of section 667.71. Finally, the information alleged that Gonzales had suffered two prior strikes in 1996, pursuant to section 288a, subdivision (c).
The case proceeded to jury trial. Gonzales came into the girls’ lives around 2005, when he began a relationship with their grandmother, Rosalie, whom he eventually married. The evidence presented at trial showed pervasive sexual abuse of Al.R., Ad.R., and An.R., over many years, by Gonzales. Al.R. was the oldest of the girls, followed by Ad.R., with An.R. being the youngest. Gonzales was arrested in the instant case in 2012, and, by the time the trial took place in the summer of 2015, Al.R. was 17 years old, Ad.R. was 16 years old, and An.R. was 14 years old.
The girls, as young children, lived for several years with Rosalie and Gonzales at a house on N Street (the house) in Madera. The girls’ mother, Crystal, is Rosalie’s daughter. Crystal also lived in the house at times but acknowledged that the responsibility for raising the girls fell to their grandmother, Rosalie. Crystal further explained she was addicted to methamphetamine during many of the years that the family lived at the N Street house and was largely absent from the girls’ lives during that period.
The house on N Street was a small, two-bedroom house. The girls shared one of the bedrooms with Rosalie and Gonzales. There was a small shed or shack attached to the back of the house, where Gonzales kept tools.
All three girls testified that Gonzales sexually abused them on an “everyday” basis at the N Street house. At some point around 2011, Crystal suspected that Gonzales was molesting An.R. and confronted Gonzales. They had a bitter argument, and about two weeks later, Gonzales and Rosalie moved out of the N Street house to an apartment on G Street (the apartment), also in Madera. The girls would frequently visit Rosalie and Gonzales at the apartment, and would often spend the night there.
The girls testified that the sexual abuse continued at the apartment. The sexual abuse ended with Gonzales’s arrest in the instant case in 2012. Al.R. and Ad.R. testified that Gonzales would molest each one of them separately as well as in the presence of one or both of the other sisters. Gonzales would put his hands under their tops to feel their chests, he would touch their vaginas both under and on the outside of their clothes, he would force them to touch his penis, and he would forcibly put his penis in their mouths. In addition to testifying about ongoing abuse on virtually a daily basis for many years, each of the girls also described particular acts by Gonzales that formed the basis of the specific charges at issue in the case. Many of these acts occurred in the tool shed at the back of the N Street house. Some of the acts took place at the house of Gonzales’s daughter, A.H., who lived in Madera too. The girls testified that Gonzales threatened to hurt them and their family members if they did not comply with his demands. For a long time, the girls were too scared to tell anyone about the abuse. In 2012, Al.R. finally told their aunt, Candy, the ex-wife of one of Crystal’s brothers, about the ongoing abuse.
Once Crystal was alerted that Al.R. had reported to Candy that Gonzales had been abusing her, she talked to the girls herself; the girls told her about the abuse and Crystal called the police. The police immediately orchestrated a pretext phone call in which Al.R., the oldest of the girls, confronted Gonzales. Gonzales made several incriminating statements in the phone call. A recording of the pretext phone call was played for the jury.
The People also presented evidence under Evidence Code section 1108, showing that Gonzales had molested his daughter, A.H., when she was a teenager. A.H. was a hostile witness who dodged or refused to answer the prosecutor’s questions. However, A.H. had reported the molestation to the police when it occurred, and the police officers who had interviewed A.H. and Gonzales in connection with her reports, testified to the relevant details. The officers testified that A.H. had reported on August 30, 1994, when she was 15 years old, that Gonzales had touched her breasts under her shirt every night for two months, and her vagina on two or three occasions. He had also grabbed her hand and put it down his pants. On June 20, 1995, A.H. reported that over the course of the previous month, Gonzales had forced her to have sexual intercourse with him three times, forced her to orally copulate him, put his finger inside her vagina, and touched her breasts. A police detective interviewed Gonzales the next day. Gonzales admitted that he had touched A.H.’s breasts and vagina and that he had made her masturbate him and orally copulate him.
At trial in the instant matter, Gonzales was convicted of all charges. All enhancement allegations were found true in a bifurcated proceeding. Gonzales was sentenced to an aggregate term of 502 years.
DISCUSSION
I. Admission of Propensity Evidence Under Evidence Code Section 1108
Gonzales argues the trial court committed prejudicial error in admitting propensity evidence of his uncharged sexually abusive conduct. Specifically, Gonzales challenges evidence of uncharged acts of sexual molestation that he committed against Al.R., Ad.R., and An.R., as well as evidence of his prior sexual abuse of his then-minor daughter, A.H., all of which the trial court admitted under Evidence Code sections 1108 and 352. Relying on People v. Harris (1998) 60 Cal.App.4th 727 (Harris), Gonzales contends the trial court abused its discretion in admitting this propensity evidence pursuant to the balancing inquiry mandated by Evidence Code section 352. We reject his contention.
A. Background
The People sought to introduce evidence of Gonzales’s uncharged sex acts with his daughter, A.H., as well as with Al.R., Ad.R., and An.R. The prosecutor stated: “[I]n regards to the defendant’s daughter, [A.H.], he sustained three total convictions for acts of molestation against her. One incident in 1994, the other incident in 1995. [¶] Also in the 1995 incident[,] [People’s] witness No. 5, [Detective] Gil Holguin … took a confession from the defendant. I would seek to admit that under [Evidence Code section] 1108, that confession.” As to the evidence of uncharged acts concerning Al.R., Ad.R., and Al.R., the prosecutor explained: “The People would seek to admit evidence of uncharged acts against Al.R., Ad.R., and An.R. For example, if I were to ask Al.R., after she testifies – for example, the defendant penetrating her vagina as to Count 1, if I was going to ask her, ‘Was that the only time he did that?’ she would say ‘No’; I expect. [¶] And then, ‘How many times did it happen, once or more than once?’ And then she can say it happened more than one time.”
The trial court and the parties discussed in depth the admissibility of the propensity evidence the People sought to introduce and, after careful consideration, the court made a balanced, well-reasoned ruling. The court ruled that the propensity evidence was admissible under Evidence Code sections 1108 and 352, but specifically instructed the prosecutor to omit questions designed to elicit inflammatory contextual details regarding the uncharged acts. The court warned the prosecutor: “I wouldn’t want a mistrial based upon the fact that we’re getting into a lot of information that shouldn’t be coming out.” The court made clear: “I don’t want to get into graphic descriptions of how each of those [acts] occurred. We’re talking about events to show propensity. I want the jury to be able to have the information, but I don’t want to club them with the information making it inflammatory and unduly prejudicial.”
The court also excluded documentary proof of Gonzales’s prior convictions for sexually molesting A.H., deeming it cumulative and unduly prejudicial. Finally, as to the evidence of Gonzales’s acknowledgment, in his police interview, that he had molested A.H., the court ruled this evidence was admissible but included a caveat: “I think the officer should be permitted to testify [that] the defendant admitted contact with certain parts of the body of [A.H.] inappropriately … [b]ut again, we’re not going to be going into a long drawn-out description of the activity itself, because that’s not what’s on trial here. It would be the propensity, so if we have a [basic] description that he engaged in this conduct, that should suffice, and we’ll go on.”
At trial, evidence regarding A.H.’s reports to police of sexual molestation by Gonzales was admitted, as was evidence of Gonzales’s contemporaneous statement to the police, in which he acknowledged sexually abusing A.H.; however, pursuant to the court’s clear directive, inflammatory details were minimized. Al.R., Ad.R., and An.R. also testified about ongoing sexual abuse by Gonzales, in addition to particular incidents of abuse that were encompassed in the charged offenses. The uncharged acts described by the three girls included various lewd acts, such as touching of their chests and vaginas by Gonzales, which the girls noted were an “everyday thing.” However, the girls simply noted that the acts had occurred and were not asked to, and did not, provide contextual details, thereby minimizing the inflammatory impact of the evidence. Indeed, the prosecutor assiduously followed the court’s directive to avoid asking questions that might elicit details beyond a bare description of the acts that had occurred.
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.” 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.” (Harris, supra, 60 Cal.App.4th at p. 736.)
Here, the trial court properly admitted the 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 the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.’” Here, both the charged offenses and the uncharged sexual acts 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. Gonzales suggests that, just like the prior bad conduct evidence in Harris, the propensity evidence at issue here was unduly inflammatory and marginally probative. Gonzales’s reliance on Harris is unavailing because the prior bad conduct evidence in that case was, in the view of the Harris court, qualitatively different from and far more violent and disturbing than the conduct at issue in the charged offenses in that case. In addition, the Harris jury was given a redacted and skewed version of the facts relevant to the prior conduct that included suggestive details but left unanswered key questions about the defendant’s actual role, thereby inviting the jury to speculate about the scope of defendant’s culpability. Accordingly, the Harris court found the prior conduct evidence was “inflammatory in the extreme” and determined that its admission by the trial court constituted an abuse of discretion under Evidence Code section 352.
Unlike Harris, here the propensity evidence that Gonzales objects to was not qualitatively different from or far more violent and disturbing than the acts that were encompassed by the charged offenses. Nor was the jury left to speculate about the extent of Gonzales’s culpability with respect to the uncharged acts described by the complaining witnesses or the uncharged acts involving A.H. On the contrary, the propensity evidence was relevant to the jury’s determination of the key disputed issues in the trial and was not merely inflammatory and, in turn, unduly prejudicial, as Gonzales suggests.
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.) The jury was instructed on a unanimity requirement in the context of generic testimony as well. (See CALCRIM No. 3501.) In addition, the prosecutor’s closing argument clearly and effectively pinpointed the act or acts that were encompassed by each count. Nor did presentation of the propensity evidence necessitate excessive consumption of time, as Gonzales acknowledges. The propensity evidence also was not unduly remote in relation to the charged offenses.
In sum, the court was well within the bounds of its discretion in admitting the propensity evidence to which Gonzales objects. 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].)
II. The No-Contact Order Issued by the Trial Court at Sentencing
At Gonzales’s sentencing hearing, the trial court issued a criminal protective order
prohibiting Gonzales from contacting Crystal, Al.R., Ad.R., and An.R. for 10 years except through an “attorney of record.” As reflected on the face of the order, the court issued the order pursuant to section 136.2. Section 136.2, subdivision (a)(1)(D) authorizes a trial court, “[u]pon a good cause belief” that harm to a victim or witness “has occurred or is reasonably likely to occur,” to issue an order prohibiting “a person described in this section” from contacting “a specified witness or a victim, except through an attorney under reasonable restrictions that the court may impose.” The protective order form, CR-161, itself specifies, however, that “[o]rders under Penal Code section 136.2(a) are [only] valid as long as the court has jurisdiction over the case” and “are not valid after imposition of a county jail or state prison commitment.” (See People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) In light of this restriction, Gonzales argues the court “improperly relied on section 136.2 to issue a no-contact protective order when sentencing [him] to state prison.” He contends the protective order must “be stricken” because the court was not authorized to issue it.
The People agree that the court was not authorized to issue the protective order pursuant to section 136.2, subdivision (a), but point out that the court could properly issue the protective order under section 136.2, subdivision (i)(1). Section 136.2, subdivision (i)(1) provides, in pertinent part: “In all cases in which a criminal defendant has been convicted of … a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing shall consider issuing an order restraining the defendant from any contact with a victim.” Section 136.2, subdivision (i)(1) further provides that “the order may be valid for up to 10 years” and that it “may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail.” In his reply brief, Gonzales concedes that section 136.2, subdivision (i)(1), authorizes the trial court to issue a protective order prohibiting contact with Al.R., Ad.R., and An.R., the victims of Gonzales’s crimes.
Here, the trial court used a preprinted, check-the-box form, CR-161, to enter the protective order. The form contains a box specifying that the order was issued under section 136.2, subdivision (i)(1) (as opposed to another subdivision of section 136.2). The court, however, did not check the box connected with section 136.2, subdivision (i)(1), thereby creating confusion as to the basis of the order. Additionally, the court’s order prohibits contact with Crystal (referred to as Antonia), as well as with Al.R., Ad.R., and An.R. (the victims of Gonzales’s crimes). Since section 136.2, subdivision (i)(1), by its express terms, authorizes issuance of a protective order prohibiting contact with the “victim[s]” of registrable offenses, the court’s order, to the extent it extends to Crystal, appears to exceed the scope of section 136.2, subdivision (i)(1).
Accordingly, we will remand the matter for the trial court to vacate its original protective order and issue a new one under section 136.2, subdivision (i)(1), prohibiting contact only with statutorily-covered parties.
III. Cruel and Unusual Punishment
Gonzales contends that his 502-years-to-life sentence constitutes cruel and unusual punishment, whereby the case “must be remanded for the trial court to fashion a sentence that comports with the Eighth Amendment.” He argues that a sentence like his “is an absurdity that serves no legitimate penal purpose” because “a sentence that no human being could conceivably complete serves no rational legislative purpose under either a retributive or a utilitarian theory of punishment.” (See People v. Deloza (1998) 18 Cal.4th 585, 601 (Deloza) (conc. opn. of Mosk, J.) [any sentence longer than the human life span can serve no rational penological purpose and is inherently cruel and unusual].) The People respond that Gonzales’s “sentence is constitutionally appropriate” and “serves a legitimate penal purpose” in light of “the eight offenses he was convicted of committing against three victims.” In this instance, we agree with the People.
The Eighth Amendment bars punishment that is excessive in relation to the crime committed. (Coker v. Georgia (1977) 433 U.S. 584, 592 (Coker).) “[A] punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” (Ibid.) Gonzales’s argument rests on the first theory of unconstitutional punishment set forth in Coker. More specifically, he relies on Justice Mosk’s concurring opinion in Deloza, which noted that a sentence exceeding a human life span can serve no rational penological purpose and is inherently cruel and unusual. (Deloza, supra, 18 Cal.4th at p. 601 (conc. opn. of Mosk, J.).)
We are not persuaded. First, Gonzales’s argument is premised on a concurring opinion that has “no controlling weight” or precedential value, People v. Ceballos (1974) 12 Cal.3d 470, 483, and is undercut by many cases that hold, on the contrary, that sentences exceeding human life expectancy do not constitute cruel and unusual punishment. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 [upholding sentence of 135 years to life]; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [upholding sentence of 115 years plus 444 years to life] (Byrd); People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [affirming sentence of 375 years to life plus 53 years]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [affirming sentence of 283 years eight months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 532 [upholding sentence of 129 years].)
Second, Gonzales’s sentence actually serves valid penological goals. The goals of criminal punishment include vindication of society’s sense of justice, protecting society from criminal harms, and deterring criminal behavior. (See People v. Mesce (1997) 52 Cal.App.4th 618, 632 [The “classic concerns of sentencing” are “retribution, deterrence, and incapacitation.”]; see also In re Nunez (2009) 173 Cal.App.4th 709, 730 [“Valid penological goals include retribution, incapacitation, rehabilitation, and deterrence.”]; People v. Warner (1978) 20 Cal.3d 678, 689 [“The paramount concern in sentencing must be the protection of society.”].) As explained in Byrd, a sentence in excess of a human life span clearly “serves valid penological purposes: it unmistakably reflects society’s condemnation of defendant’s conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future.” (Byrd, supra, 89 Cal.App.4th at p. 1383.) Here, Gonzales’s repeated and predatory sexual assaults affected multiple children at extremely vulnerable times in their lives, realistically leading to lifelong consequences for them. Furthermore, Gonzales continued to commit the offenses over a considerable span of time. Given this record, the sentence that Gonzales received furthered acceptable penological goals of retribution, deterrence, and incapacitation and, in turn, was not excessive under Coker.
DISPOSITION
The matter is remanded for the trial court to vacate the criminal protective order issued against Gonzales and to re-issue it under section 136.2, subdivision (i)(1) with respect to the parties covered by the statute. The judgment is affirmed in all other respects.



SMITH, J.
WE CONCUR:



FRANSON, Acting P.J.



PEÑA, J.