Filed 12/19/19 P. v. Valentin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC MICHAEL VALENTIN, JR.,

Defendant and Appellant.

G056472

(Super. Ct. No. 15CF2174)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Eric Michael Valentin, Jr., of committing a lewd act upon an 11-year-old child. (Pen. Code, § 288, subd. (a); all further statutory references are to this code unless noted.) Valentin contends the trial court erred in admitting testimony under Evidence Code section 1108 (§ 1108) about Valentin’s prior uncharged sexual offenses. This challenge fails, and we therefore affirm the judgment.

I.

FACTS

In 2015, the victim, 11-year-old Andrew G., lived in an apartment with his mother, his sister, and his 19-year-old cousin, Anthony. Valentin, who was friends with Anthony, was often at the apartment and occasionally spent the night. Andrew’s mother worked two jobs, and Valentin sometimes would watch Andrew during the day. Valentin and Andrew played video games together, and Andrew considered him a good friend.

According to Andrew, one day while his mother was at work, he and Valentin were sitting on the couch when Valentin asked if he could see Andrew’s penis. Andrew did not want to show Valentin his penis and told him no, but Valentin kept asking. They walked into his mother’s bedroom, and Valentin closed the door. Andrew pulled down his gym shorts, and Valentin knelt on the ground and touched Andrew’s penis with his hands, which made Andrew “uncomfortable.” They then returned to the living room and sat on the couch to play video games. Valentin put a blanket on his lap, and Andrew could see Valentin’s hand under the blanket, moving up and down near his penis. After that incident, Valentin showed Andrew pornography on his cell phone.

Andrew kept the incident to himself because he wanted “to forget about it.” Some time later, however, Andrew’s mother asked him if anyone had ever touched him. He told her what happened, and she contacted the police.

During a police-initiated covert telephone call with Andrew’s mother, Valentin admitted he had touched Andrew’s penis, but claimed he did so because Andrew had questions about hygiene. Valentin also admitted he had watched pornography with Andrew.

The Orange County District Attorney charged Valentin with committing a lewd act on a child under 14 (§ 288, subd. (a); count 1) and distributing pornography to a minor (§ 288.2, subd. (a)(2); count 2).

Before trial, the prosecution moved in limine to admit certain prior sexual offenses under section 1108, and the trial court granted the motion. The jury thus heard testimony from a police detective who investigated Valentin for possessing child pornography in 2009. The jury also heard testimony from Andrew’s friend S.C., who testified he exchanged sexual messages on Snapchat with someone whom he believed to be Valentin. However, the prosecution was unable to lay a proper foundation for how S.C. knew the messages were from Valentin.

On count 2, the jury convicted Valentin of the lesser offense of attempting to distribute harmful material to a minor. The jury was unable to reach a verdict on count 1 (committing a lewd act on a child under 14), however, and was split eight to four in favor of acquittal. The trial court declared a mistrial on count 1, denied the defense’s motion to dismiss that count, and allowed a retrial of count 1.

Before the second trial, the prosecution again moved to present evidence of Valentin’s prior sexual offenses under section 1108, but this time sought to add additional witnesses. After argument, the trial court ruled as follows: “Uncharged offenses can be used as propensity evidence under Evidence Code 1108. [The] People are presenting witnesses for that testimony. [Section] 1108 allows that type of testimony. I’ve looked at it under [Evidence Code section] 352, and I don’t see any disqualifying factors under [section] 352.” The court inquired if the defense wished to be heard any further, and the defense answered no.

The jury in the second trial heard testimony from five witnesses concerning four prior sexual offenses by Valentin. First, Andrew’s friend S.C. testified that Valentin sent S.C. sexual messages on Snapchat, talked to S.C. about sex, and sent S.C. an unsolicited picture of an erect penis.

Second, Christopher A. testified that in 2009, when he was 11 or 12, he met Valentin while Valentin was working at a videogame store, and began exchanging text messages with him. According to Christopher, Valentin sent him a photograph of a woman’s bare breasts and asked Christopher to send him a picture of his penis. Christopher’s mother found the messages on her son’s phone and called the police. According to the police detective who interviewed Valentin about Christopher, Valentin admitted he spoke to Christopher about sexual situations and the size of their penises, he was aroused by the communications, and he was sexually attracted to underage males.

Third, Valentin’s neighbor, T.L., testified that in 2009, when he was 11 years old, Valentin encouraged him to talk to him about sex and masturbation, told him to put his finger inside his anus while masturbating, and told him to delete their text messages “so he wouldn’t get caught.” When the same detective interviewed Valentin about his communications with T.L., Valentin admitted he knew T.L. was underage, he spoke with T.L. about sex, he told T.L. to put his finger in his anus, and he told T.L. to delete their text messages. Valentin also admitted to possessing child pornography and engaging in sexual acts with as many as eight underage boys when he was in high school.

Finally, Valentin’s neighbor, G.G., testified that when he was about 14 years old, Valentin told G.G. he “had a girl for [him],” but she first wanted to see a picture of G.G.’s penis, and to send him a picture of his penis so Valentin could show the picture to the girl. G.G. sent the picture. When the same detective interviewed Valentin about his communications with G.G., Valentin admitted he had similar sexually-themed conversations with G.G. and told G.G. he wanted him to masturbate.

After deliberating for 26 minutes, the jury in the second trial found Valentin guilty on count 1. Valentin appealed.

II.

DISCUSSION

Valentin contends the trial court erred in the second trial by admitting evidence of uncharged sex crimes under section 1108. We review rulings admitting evidence under section 1108 for abuse of discretion. (People v. Daveggio & Michaud (2018) 4 Cal.5th 790, 824.) “We will reverse only if the court’s ruling was ‘arbitrary, whimsical or capricious as a matter of law.’” (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)

A. Forfeiture Issue

As a preliminary matter, we reject the Attorney General’s argument that Valentin forfeited his challenge to the section 1108 evidence by failing to object to the evidence during the second trial. The prosecution raised the issue of the evidence’s admissibility and the need for an Evidence Code section 352 (§ 352) analysis in its pretrial motion, and the trial court addressed that section in ruling on the motion. Consequently, there was no need for Valentin to object because the prosecution put these issues “on the table” in its own motion. (People v. Brenn (2007) 152 Cal.App.4th 166, 174 [“The whole idea behind the objection requirement is to afford the proponent of the evidence an opportunity to establish its admissibility and assist the court in making an informed decision”].) Moreover, even if Valentin forfeited the issue, “we have discretion to consider a forfeited claim” (City of Clovis v. County of Fresno (2014) 222 Cal.App.4th 1469, 1477) and choose to do so here.

B. Standards Guiding Evidence Admitted Under Section 1108

Generally speaking, “evidence is inadmissible when offered by the opposing party to prove the defendant’s conduct on a specified occasion ([Evid. Code,] § 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act ([Evid. Code,] § 1101, subd. (b)).” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)

Section 1108 creates an exception to this general rule, permitting the admission of propensity evidence in cases involving sex crimes. It provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) “Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Falsetta, supra, 21 Cal.4th at p. 911.) Our Supreme Court has held section 1108 is “constitutionally valid.” (Id. at p. 907.)

“By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.) Under section 352, the trial “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.” (§ 352.)

In applying the section 352 balancing test to section 1108 evidence, “trial judges must consider such factors as [the evidence’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)

“Condensing this list, five factors stand out as particularly significant in an Evidence Code section 1108 case. These factors are: (1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence’s probative value, against the evidence’s prejudicial and time-consuming effects, as measured by the second through fifth factors. [Citation]).” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 (Nguyen).)

 

C. Application

Here, the trial court considered the propensity evidence under the section 352 balancing test and saw no reason to exclude it. We find no abuse of discretion in that decision.

1. Probative Value

To start, the evidence’s probative value was high because it demonstrated Valentin’s propensity and intent to commit the charged act. (See People v. Escudero (2010) 183 Cal.App.4th 302, 305-306 [“persons who commit sex offenses often have a propensity to commit sex crimes against more than one victim”].) To prove Valentin committed a lewd act on a child under the age of 14, the prosecution had to prove Valentin willfully touched Andrew “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [himself] or the child.” (§ 288, subd. (a).) Here, the evidence Valentin targeted and initiated sexual conversations with boys between the ages of 11 and 14, Valentin’s admitted attraction to underage boys, and his possession of child pornography could support a finding that Valentin was inclined to commit sexual offenses against minors and willfully touched Andrew’s penis to gratify his own lust, passions, or desires. The section 1108 evidence was thus highly probative on propensity and intent.

In attacking the evidence’s probative value, Valentin argues the uncharged crimes, which did not involve touching, were not identical to the charged act. But “[t]he charged and uncharged crimes need not be sufficiently similar . . . [;] otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 (Frazier).)

2. Prejudice

Turning to the evidence’s prejudicial and time-consuming effects, we see no factor requiring the trial court to exclude the evidence. First, the propensity evidence was no more inflammatory than the charged act. In each instance, Valentin engaged the boys in conversations about sexual matters; he sometimes sent or solicited sexual pictures; and he admitted to an investigator he was sexually attracted to underage boys. This evidence, while damaging, was not especially inflammatory in comparison to the charged offense of touching the exposed penis of an 11-year-old boy. (See People v. Eubanks (2011) 53 Cal.4th 110, 144 [potential for prejudice decreases when testimony concerning the uncharged acts is “‘no stronger and no more inflammatory than the testimony concerning the charged offenses’”].)

Valentin insists the propensity evidence was inflammatory because of its volume and repetitive nature. We are not persuaded. Each witness’s account related to his own personal experience with Valentin, and in any event, “‘[e]vidence that is identical in subject matter to other evidence should not be excluded as “cumulative” when it has greater evidentiary weight or probative value.’” (People v. Scott (2015) 61 Cal.4th 363, 399.) Valentin suggests the trial court should have limited the propensity evidence, but the record includes no defense objection or request that the court limit some of the testimony.

Nor were the prior crimes impermissibly remote from the charged offense because they occurred seven years earlier. Although “[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible,” prior crimes that occurred as many as 30 years before the charged offense have been admitted under section 1108. (See Branch, supra, 91 Cal.App.4th at pp. 284-285.) Valentin’s uncharged 2009 offenses were therefore not too remote from the charged act that occurred in 2015.

Further, there is no indication the propensity evidence confused or misled the jury. Valentin cites no misleading statements by the prosecution or inadequate jury instructions. Instead, he asserts the jury’s short 26-minute deliberation time shows the jury did not carefully consider the elements of the charged offense, but rather was punishing Valentin for past crimes. We disagree. The propensity evidence’s relevance was clear, and the length of deliberations at most shows the jury in the second trial was convinced of Valentin’s guilt beyond a reasonable doubt.

Finally, Valentin contends the propensity evidence was unduly prejudicial because it necessitated an undue consumption of time. According to Valentin, the amount of court time spent on the prior uncharged crimes was roughly equivalent to the amount of court time spent on the charged incident, yet overwhelmed the charged incident “in emotional bias.” Again, we do not find this argument persuasive. “Conceivably a case could arise in which the time consumed trying the uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the defendant. Defendant has not cited such a case.” (Frazier, supra, 89 Cal.App.4th at p. 42.) As we explained above, the evidence of uncharged offenses was otherwise properly admitted, and we cannot say spending court time on this evidence was prejudicial as a matter of law.

To recap, “[t]he trial court enjoys broad discretion under Evidence Code section 352 in determining whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time and this discretion is built into Evidence Code section 1108, subdivision (a). The exercise of this statutory discretion will not be disturbed on appeal ‘“except on a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (Frazier, supra, 89 Cal.App.4th at p. 42.) Valentin failed to make that showing here.

III.

DISPOSITION

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

IKOLA, J.