Filed 12/30/19 P. v. Andrade CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ROMEL ANDRADE,

Defendant and Appellant.

C083282

(Super. Ct. No. 15F06910)

Defendant Romel Andrade sexually abused his girlfriend’s eight-year-old daughter. A jury found him guilty in August 2016 of two counts of lewd and lascivious acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).) In September 2016, defendant pleaded no contest to two additional counts of violating Penal Code section 288, subdivision (a). Per the parties’ agreement, defendant was sentenced in October 2016 to an aggregate term of 12 years in state prison.

On appeal, defendant contends the trial court erred in admitting evidence of two uncharged sexual offenses. (Evid. Code, § 1108.) He further contends the trial court erred in instructing the jury. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charged Sexual Abuse
2.
The victim’s mother began dating defendant (then age 22) in 2009. At the time, the mother had two children, the victim (then age seven) and a son (then age two). They all moved into a two-bedroom apartment in the fall of 2009, with the children sharing one of the rooms and the adults sharing the other. The mother became pregnant in the fall of 2009. Her relationship with defendant ended by the time their child was born in July 2010, and defendant moved out three months later.

In August 2015, the mother argued with the victim (then age 14) about smoking marijuana. The victim, who was crying and upset, told the mother that defendant had come into her room while she was sleeping and touched and put his fingers inside her vagina. The victim also told the mother that she was once in her room getting dressed after a shower when she saw defendant’s phone in her closet set on record mode. The victim knocked the phone down and returned to the bathroom. Although the mother briefly considered whether the victim was lying, she ultimately believed her. The mother punished the victim for smoking pot, but the victim never said she made up the molestation story. Two hours after the victim told the mother what happened, the mother took her to the hospital and contacted law enforcement.

The victim subsequently told her aunt that defendant “had her watching porn” in his sister’s bathroom. The victim also described to the mother specific identifying characteristics of defendant’s genitals, and the mother testified at trial that the victim had not walked in on them when defendant was undressed. The victim was afraid of defendant.

Three days later, the mother and the victim spoke with Detective Pam Linke. Linke directed a pretext call between defendant and the mother, with Linke prompting the mother with note cards. During the call, defendant denied touching the victim. An audio recording of the call was played for the jury.

At trial, the victim testified that during the first incident she was in her bedroom at night, going to sleep. The victim’s brother was asleep in his bed, and the mother was asleep in her room. Defendant came in, took the blanket off the victim’s bed, and slowly moved his hand up her shorts, touching her thigh and vaginal area. The victim told him to stop, but defendant covered her mouth. Defendant penetrated her vagina with his fingers and moved his fingers in and out, causing her pain. Defendant did not say anything. Defendant uncovered her mouth, but the victim did not say anything because she was afraid. The victim never told anyone what happened that night. Defendant touched her two additional times.

The next incident happened several months later. The victim was on the couch watching television, and her brother was playing games in the bedroom. The mother was at work. Defendant sat down next to her, pulled out the waistband of her shorts, and began touching her vaginal area. Defendant put his fingers inside her vagina, moving in and out.

The third incident occurred several months later. The victim and her brother were in their bedroom. Defendant came in and told the brother to leave so he and the victim could “play a massage game.” The brother went out to the living room, and defendant closed the bedroom door, slid his hand into the victim’s shorts, and touched her vagina. Defendant also put his fingers inside the victim’s vagina, moving in and out. Defendant took off the victim’s shirt, grabbed her hand, slid it into his shorts, and made her touch his penis. Defendant used his hand to move the victim’s hand up and down on his penis. Defendant then withdrew his hands and left the room. The victim did not tell anyone what happened because she was only eight or nine and she was “afraid” of how her family would react.

In another incident, the victim was sitting at the dining room table and defendant was sitting on the couch in the living room. Defendant went into the kitchen and returned to the dining room with a package of hotdogs from the refrigerator. He handed one to the victim and told her to “play with it,” which she understood to mean in a “sexual way.” The victim held the hotdog and moved her hands up and down on it. Defendant returned to the couch, watched the victim, and touched his penis. Defendant walked away, and the victim set down the hotdog and left the table. The victim did not tell anyone what happened. The incidents stopped after the mother gave birth in July 2010.

3. Uncharged Offense Involving E.
4.
At trial, the mother testified that while she was pregnant, her ex-boyfriend (and father to the victim and the brother) began visiting with the kids every weekend, which upset defendant. Defendant and the mother began arguing, and defendant asked if she would like it if his ex-girlfriend, E., came over. Defendant told the mother he was 19 years old when he started dating E., who was only 13 years old at the time. Sometimes defendant said E. was 14 or 15. Defendant said he had a sexual relationship with E. He “loved” E., who was also his neighbor. The mother testified she was upset when she learned about E., because E. was “very young.” The mother and defendant eventually ended their relationship due to E. repeatedly calling defendant. Although defendant denied being in a romantic relationship with E., he did tell the mother he had sex with her in 2010.

During the pretext call between the mother and defendant, he acknowledged he had sex with E. when she was 13 and he was 19. He denied having sex with E. in 2010. E. did not testify at trial.

5. Uncharged Offense Involving J.
6.
J. testified at trial that defendant was her boyfriend between February and March 2012, when she was a sophomore in high school. When J. and defendant began their relationship, he told her he was 20 years old, although she later found out he was 24. She told defendant her age (15 years old at the time) and also listed her correct birthdate on Facebook. J. and defendant were friends on Facebook. J. and defendant had sexual intercourse three times during their relationship and she “loved him at the time.” J. complied with defendant’s request to not use protection during sex. At defendant’s request, J. sent him naked pictures of herself. J. ended the relationship due to her parents’ disapproval. After the relationship ended, law enforcement was contacted. J. participated in a pretext phone call with defendant, a recording of which was played for the jury during trial. During the call, defendant said he had an orgasm “inside” of J. “twice probably.”

During trial, the jury was informed via a party stipulation that defendant was convicted of statutory rape in April 2012 due to engaging in sexual intercourse with a person under the age of 16, namely, J., who was age 15 at the time. (Pen. Code, § 261.5, subd. (b).) As a result, defendant was placed in an ankle monitor in 2012.

7. Testimony of Defendant’s Niece
8.
During trial, defendant’s niece testified on his behalf. The niece visited defendant every other weekend in 2009 and 2010. She and the victim were close in age and the victim became her “best friend.” The niece testified that the victim and defendant had a father-daughter relationship, and the victim never appeared scared around defendant.

9. Pretrial Rulings Regarding Admission of Evidence of Uncharged Offenses Involving E. and J.
10.
Prior to trial, the prosecution moved to admit evidence regarding defendant’s uncharged offenses with respect to E. and J., arguing it was relevant as to defendant’s intent. (§§ 1101, 1108.) The prosecutor argued defendant had admitted the sexual nature of his relationship with E. to the mother during their conversation in 2010. Defendant also acknowledged during the pretext call with the mother that the relationship was sexual when E. was 13 years old and he was 19. Defendant also acknowledged during the pretext call with J. that he had orgasmed during intercourse with her twice. The prosecutor proposed calling J. as a witness.

Defendant argued the evidence should be excluded because defendant’s conduct in the other instances was not sufficiently similar to permit an inference that he harbored the same intent. Defendant also argued the evidence was more prejudicial than probative. (§ 352.) Without submitting a declaration, defendant claimed E. told the district attorney investigator that she did not have a sexual relationship with defendant. Defendant also claimed the 2007 police report identified E. as 15 or 17, meaning Penal Code section 288 would not apply. In addition, the mother was not a reliable witness.

During the hearing on the matter, the trial court noted that with respect to the offense involving J., defendant was convicted of violating Penal Code section 261.5 and he admitted during the pretext call that he had sex with her. With respect to E., the court noted defendant seemed to admit during the pretext call with the mother that he had a sexual relationship with E. previously, but not when he and the mother were breaking up. Defendant and E. each denied to the police in 2007 that anything happened between the two of them, and E. continued to deny it to the prosecution’s investigator. The prosecutor told the court she did not plan to call E. to testify because she was planning on introducing the evidence through defendant’s statements. Defense counsel argued there was lack of evidence that defendant committed a bad act with E., given E.’s repeated denial of any sexual relationship to the district attorney investigator and defendant’s “vague” responses during the pretext call. Defense counsel also objected to the prosecution’s decision to not call E. as a witness and stated she was unsuccessful in contacting E. The trial court offered to continue the trial so defendant could secure her presence, and the prosecution did not object.

The trial court held that the uncharged acts involving E. and J. were admissible under section 1108. The evidence was relevant to defendant’s proclivities toward underage individuals. The current charges were more likely to inflame than the other events, which at least one appeared consensual. The acts were not remote and were unlikely to distract the jury from their main inquiry. The amount of information was limited and would not take an undue amount of time. In addition, although E. would not testify, defendant’s statements during the pretext call were clear and not “subject to multiple interpretations.” In sum, the probative value of the evidence outweighed any potential prejudicial effect.

11. Jury Instructions
12.
With respect to the uncharged offenses under section 1108, the trial court instructed the jury pursuant to CALCRIM No. 1191, as follows: “The People presented evidence that the defendant committed the crimes of violation of Penal Code Section 261.5, that’s the testimony related to [J.], and a violation of Penal Code Section 288, testimony related to [E.], that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence, that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude it is more likely than not that the fact is proved. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide the defendant committed the uncharged offenses, you may but are not required to conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude the defendant was likely to commit and did commit a violation of Penal Code Section 288(b), or the lesser crime of a violation of Penal Code Section 288(a) as charged here. [¶] If you conclude the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove the defendant is guilty of a violation of Penal Code Section 288(b)(1), or the lesser crime of a violation of Penal Code Section 288(a). The People must still prove each charge beyond a reasonable doubt.”

Defendant filed a timely appeal.

DISCUSSION

I

Defendant contends the trial court abused its discretion in admitting the evidence of uncharged offenses involving E. and J. We find no error.

With certain exceptions, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (§ 1101, subd. (a).) One such exception is found in section 1108, which 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 Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) Uncharged misconduct is admissible if the trial court makes a preliminary determination that there is sufficient evidence for the jury to find by a preponderance of the evidence that the defendant committed an enumerated offense. (People v. Jandres (2014) 226 Cal.App.4th 340, 353.)

1. Evidence of E. Offense Was Properly Admitted
2.
Defendant claims that the trial court should have excluded evidence of the E. offense because there was inadequate evidence that defendant’s relationship with her amounted to one of the crimes enumerated in section 1108. According to defendant, the People failed to present evidence that E.’s relationship with defendant was sexual and that her age qualified under Penal Code section 288. Defendant argues the mother was biased and had no personal knowledge of his relationship with E. Defendant also notes that E. repeatedly denied a sexual relationship with him and argues it was error to admit the evidence because she was not called as a witness. Finally, defendant argues the evidence was more prejudicial than probative.

Despite defendant’s contentions, there was sufficient evidence for the jury to find by a preponderance of the evidence that defendant violated Penal Code section 288, subdivision (a). The mother testified at trial that defendant told her that he had a sexual relationship with E. when she was 13 and he was 19. Although mother also testified defendant would sometimes refer to her as being 15 years old, during the pretext call with the mother, defendant said she was 13 at the time. Defendant also made clear the nature of his relationship with E. during the pretext call with the mother. When the mother said he had a “problem” if he was “having sex with minors” like E. and another unidentified girl, defendant responded it was “one minor,” and clarified they were “talking about [E.]”

Whether the mother was objective or biased was for the jury to determine and goes to the weight and credibility of her testimony, not its admissibility. We also reject defendant’s challenge of the mother’s lack of personal knowledge about his relationship with E., since she was testifying about defendant’s description of it.

Neither was the admission of defendant’s prior acts unduly prejudicial. “ ‘ “ ‘The “prejudice” referred to in [section 352] applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” [Citations.]’ [Citation.] [¶] . . . Evidence is not inadmissible under section 352 unless the probative value is ‘substantially’ outweighed by the probability of a ‘substantial danger’ of undue prejudice or other statutory counterweights.” (People v. Holford (2012) 203 Cal.App.4th 155, 167.)

The uncharged E. offense was relevant to prove propensity to commit the charged offenses, which also involved defendant’s sexual interest in minor girls. Defendant’s sexual relationship with the 13-year-old E. was not stronger or more inflammatory than the charged offenses involving the eight-year-old victim. (People v. Branch (2001) 91 Cal.App.4th 274, 283.) The testimony was brief and took up relatively little time at trial. We also cannot conclude the evidence would have misled the jury or caused it to be confused as to the issues before it. Although the jury did not hear evidence of E.’s denials of a sexual relationship with defendant, the trial court did not preclude defendant from subpoenaing or otherwise calling E. as a witness. The trial court did not abuse its discretion under section 352.

3. Evidence of J. Offense Was Properly Admitted
4.
Defendant also contends the trial court abused its discretion in admitting J.’s testimony and the redacted portion of the pretext call between J. and defendant, since the jury was informed via the parties’ stipulation that defendant was convicted of violating Penal Code section 261.5. Even though the stipulation was read to the jury after J.’s testimony and it is unclear when the parties agreed to it, defendant argues the additional evidence was cumulative and prejudicial. Despite defendant’s objection to the pretext call during in limine motions, the People argue he forfeited the issue because his argument at the trial court was based on prejudicial statements in the call relating to an abortion that were ultimately redacted. Regardless, defendant’s claims are without merit.

Despite defendant’s contentions, the testimony and redacted pretext call provided additional and relevant information regarding defendant’s relationship with J. During her testimony, J. clarified they had sexual intercourse three times when she was 15 years old. She referred to defendant as her “boyfriend” during their three-month relationship and testified she “loved him.” J. also testified she told defendant her age and complied with his request for nude photos of herself, indicating his sexual interest in minor girls. J.’s testimony was confirmed by the brief excerpt from the pretext call played for the jury, in which defendant said he had sexual intercourse with J. more than once. In sum, the evidence was neither cumulative, time consuming, nor unduly prejudicial, especially since it was not stronger or more inflammatory than the charged offenses.

II

In a related argument, defendant contends the trial court violated his constitutional rights to due process and a fair trial in admitting evidence relating to E. According to defendant, he had “no opportunity” to contest the “inaccurate and prejudicial evidence.” Defendant points to the conflicting evidence regarding E.’s age, including the conflicting dates of birth on the police report from 2007, and the failure of the prosecutor’s investigator to ask E. about her age. Defendant also notes E. repeatedly denied her relationship with defendant was sexual. According to defendant, E.’s “unavailability” at trial allowed the prosecution to “misrepresent” E.’s age and the nature of her relationship with defendant, without defendant being able to respond.

While it is possible E. may have provided inculpatory evidence had she testified, defendant does not suggest the prosecution failed to fulfill its obligation to disclose such information to defendant prior to trial. (In re Sassounian (1995) 9 Cal.4th 535, 543 [the prosecution has a duty under the due process clause to disclose evidence to a defendant that is both favorable to the defendant and material on either guilt or punishment].) Although defense counsel may have had difficulty contacting E., there is nothing in the record to suggest she was unavailable, and the trial court did nothing to hamper defendant’s efforts to call her as a witness. The trial court even offered to continue the trial so defendant could secure her presence, with no objection from the prosecution.

To the extent defendant is arguing the prosecution presented false evidence, we note defendant did not raise a claim of prosecutorial misconduct at the trial court. (People v. Noguera (1992) 4 Cal.4th 599, 638.) Regardless, the evidence regarding E.’s age and the nature of her relationship was based on defendant’s statements during the pretext call and his conversations with the victim’s mother. On this record, we find no error.

III

Defendant claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 1191. The People argue defendant forfeited the issue by failing to object in the trial court. Regardless, we find defendant’s contentions without merit.

1. There Was Sufficient Evidence for the Instruction
2.
“A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof.” (People v. Cole (2004) 33 Cal.4th 1158, 1206.) We review such a decision de novo and consider whether there was sufficient evidence to support the giving of the instruction. (Ibid.)

Defendant asserts that there was insufficient evidence that he violated Penal Code section 288 in his relationship with E. Given defendant’s statements during the pretext call with the mother that E. was 12 or 13 when he had sex with her, we find no error.

3. Instruction Did Not Lower the Burden of Proof
4.
Defendant also argues the jury instruction lowered the burden of proof with respect to the charged offenses, pointing to the following clause: “If you decide the defendant committed the uncharged offenses, you may but are not required to conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude the defendant was likely to commit and did commit a violation of Penal Code Section 288(b), or the lesser crime of a violation of Penal Code Section 288(a) as charged here.” According to defendant, the language instructed the jury that “if it decide[d] that the defendant committed the uncharged offense, it c[ould] conclude he has a propensity to commit sex offenses, and based on that, that he did, in fact, commit the charged offense.” The People argue defendant has forfeited the issue because he failed to object to the instruction during trial and the error did not affect his substantial rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Regardless, defendant’s contentions are without merit.

We reject defendant’s selective reading of CALCRIM No. 1191. (See People v. Vang (2009) 171 Cal.App.4th 1120, 1129 [in reviewing claims of instructional error, we consider the instruction “in the context of the instructions as a whole and not in isolation, . . . and we presume jurors can understand and correlate all instructions given”].) The instruction also makes clear that the uncharged offenses are only one factor to consider; that they are not sufficient to prove by themselves that defendant is guilty of the charged offenses; and that the People must still prove the charged offenses beyond a reasonable doubt. (See People v. Reliford (2003) 29 Cal.4th 1007, 1011-1016 [rejecting a similar challenge to the given instruction’s CALJIC counterpart CALJIC No. 2.50.01, an instruction based on § 1108]; see also People v. Villatoro (2012) 54 Cal.4th 1152, 1166-1167; People v. Loy (2011) 52 Cal.4th 46.)

DISPOSITION

The judgment is affirmed.

/s/

BLEASE, Acting P. J.

We concur:

/s/

MAURO, J.

/s/

RENNER, J.