Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F03900303-9 R. L. Putnam, Judge.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
Appellant Kris Hall was charged and convicted of three felony counts for sexually molesting nine-year-old A. in 2001 and sentenced to six years in prison. On appeal, he contends the court improperly permitted the prosecution to introduce evidence that he sexually molested 11-year-old E. in 2004, and that such evidence was inadmissible under Evidence Code section 1108 since the uncharged incident occurred after the charged offenses and it was unduly prejudicial. Appellant also contends a concurrent term must be stayed pursuant to Penal Code section 654. We will correct the sentence and otherwise affirm.
All further statutory citations are to the Evidence Code unless otherwise indicated.
STATEMENT OF THE CASE
On March 6, 2003, an information was filed in the Superior Court of Fresno County charging appellant with counts I and II, commission of a lewd act upon A., a child under the age of 14 years (Pen. Code, § 288, subd. (a)), and count III, oral copulation of A., a child under the age of 14 years (Pen. Code, § 288a, subd. (c)(1)). Appellant pleaded not guilty.
On October 23, 2006, appellant’s jury trial began. On November 2, 2006, appellant was convicted as charged. On February 16, 2007, the court imposed the midterm of six years for count I, with concurrent midterms of six years for counts II and III.
On March 12, 2007, appellant filed a timely notice of appeal.
FACTS
As of June 2001, nine-year-old A. lived with her legal guardian, M.L., and M.L.’s longtime boyfriend, E.B., in Kingsburg. A. had lived with them since she was an infant, referred to them as her grandparents, and M.L. later became her adoptive grandmother. The family lived in a three-bedroom house, and A. had her own bedroom and kept her computer there. No one else lived with them. M.L. testified they did not have any pornographic movies or materials in the house, and no one talked about sexual matters around A. A. had been born premature, she was slow in school and had been held back one year, and she needed extra help in class. A. was otherwise a “[t]ypical kid” and had neighborhood playmates.
In June 2001, M.L. started a new job providing in-home night care for an elderly person. M.L. left for work at 7:00 p.m. and returned home at 7:00 a.m. E.B. remained home at night to take care of A. Appellant (born 1954) had worked with E.B. several years earlier and they had remained friends. M.L. testified that at the time she started her new job, appellant came by their house “quite a bit” for barbeques and would “pop in” for visits. Both M.L. and E.B. were present when appellant visited, but appellant stayed overnight on one occasion when M.L. left for her nighttime job.
M.L. testified that during appellant’s visits, he would always go into A.’s room to use her computer. “He was always going in there. He was always going in her room, and I never thought anything of it.” “[E]very time he would come, he’d have to go see the kid, and he’d go in there in the computer” while M.L. would be busy cleaning house. Appellant said he was going to A.’s room to “see the kid” every time he visited.
At trial, M.L. conceded that she had failed to tell the police that appellant always went into A.’s room. M.L. explained she only answered the questions asked of her, no one asked if appellant went into A.’s room, M.L. did not have a good rapport with the investigating officer, and she was upset because the officer never returned her telephone calls or responded to her inquiries about the case.
A. testified she didn’t really know appellant except as E.B.’s friend, and she did not spend much time talking to him. On one occasion, appellant gave her a ride on his motorcycle. She sat on the back and held onto him, and he said something to her that scared her.
A. testified appellant touched her more than once during his visits to her grandparents’ house in the summer of 2001, just when M.L. started to care for an elderly person. A. testified about four incidents: he touched her body under her overalls, he touched her while she was putting on her nightgown and underwear, he pulled back her covers and licked her vagina, and he walked into the bathroom while she was in the tub.
A. testified the first incident occurred while she was playing video games in her room in the daytime. She was wearing overalls, with a blouse and underwear. Appellant was in her room to fix her computer. Appellant told A. to stand up, and he placed his hand inside her overalls, under her underwear, and touched her buttocks. He then moved his hand to the front of her body and touched her vagina. Appellant stood right up against her as he touched her and it lasted a few minutes. He did not touch the inside of her buttocks or vagina. After he touched her, he told A., in a calm and quiet voice, not to tell anyone. A. felt scared when he said that, and she did not tell anyone.
A. testified another incident occurred a few days later. It was “close to night” and she was in her bedroom and getting ready to go to bed. She did not know where M.L. or E.B. were at that time. A. testified she was putting on a nightgown when appellant walked into her bedroom. Appellant held her, put his hand on her buttocks, and said, “You’re not wearing any underwear.” A. replied, “I was going to put some on before you came in.” Appellant put his hands on her buttocks, squeezed her for a few minutes, and then left her bedroom. She was scared of appellant “for doing those things to me” and did not tell anyone.
A. testified another incident occurred a few days after the nightgown incident. A. was in bed and trying to get to sleep. Appellant went into her bedroom and asked if she was asleep. A. said no. Appellant pulled off her covers and told her to take off her underwear, and she complied. Appellant kneeled next to her bed, and “put his tongue on my vagina and he went inside it with his tongue.” Appellant touched her legs as he licked her vagina. A. did not push him away because she was scared and afraid of A., and what he was doing to her. The incident lasted for a few minutes and it felt gross. After it was over, appellant put his face within a few inches of A.’s face and told her not to tell anyone.
A. testified that appellant left the bedroom, then returned a few minutes later, “did the same thing,” and licked her vagina. After he finished the second time, he again told her not to tell anyone. A. was scared and did not tell anyone. A. testified that M.L. was working and not in the house that night, and E.B. was asleep in his own room.
A. testified about another incident when she was taking a bath, and she called out to M.L. for help. Within a few minutes, appellant opened the bathroom door, walked in, and said, “Oh, sorry. I didn’t think someone was in here,” and then left. Later that day, as appellant was about to leave the house, appellant and A. were at the front door, and M.L. and E.B. were in the living room. Appellant whispered to A., in a quiet voice, “I liked what I seen.” A. testified this incident occurred the day after appellant entered her bedroom and licked her vagina.
A. testified she did not tell M.L. or E.B. about appellant’s conduct because she was afraid they would not believe her, or that appellant “might do something to hurt me or something.” She never told any of her friends about the incidents.
In February 2002, M.L. and A. were driving from Reno back to Kings burg, and were alone in the car. During the drive, M.L. and A. were “singing and having a ball” and having “girly talk.” M.L. assured A. that “[w]hatever, bad or good, always come to grandma.” M.L. testified A. became very emotional and revealed what appellant “had done to her.” A. was “really crying” as she told M.L. about the incidents, and M.L. also started crying. A. testified that M.L.’s statement she could tell her anything, good or bad, triggered A.’s decision to tell M.L. about appellant’s actions. She felt sad and embarrassed when she told M.L. Appellant was the only person who had ever molested her. M.L. testified that she called the police shortly after they returned to Kingsburg.
The investigation
On the morning of February 15, 2002, the Kingsburg Police Department received M.L.’s report that appellant molested A. Sergeant Kevin Pendley met with both M.L. and A. at the police department, determined the incidents occurred between June and July 2001, and that A. reported the incidents to M.L. on February 11, 2002. M.L. said that appellant was a family friend and had spent the night at their house.
Officer Pendley interviewed A. in his office while M.L. was present. A. was 10 years old at the time of the interview. A. was upset and uncomfortable as she talked about appellant’s conduct, and said she did not like to think about what appellant did, but she was not unclear as to what happened. Officer Pendley determined A. was in a special education class, but A. did not show any signs that she did not understand the questions or answers.
Officer Pendley testified that A. said appellant had touched her twice. The first incident happened in the summer of 2001, when appellant stayed overnight at their house. It was nighttime and A. was sleep in her bed when appellant entered her bedroom. He told her to take off her panties and he licked her “private part.” A. said he forced his tongue into her vagina twice, and told her not to tell anyone what he did. A. said she did not tell anyone because she was afraid that he could hurt her or take her away.
Officer Pendley testified that A. described a second incident which occurred two days after the licking incident. M.L. was in the kitchen and A. was in her bedroom. Appellant walked into her bedroom to use the computer. A. stated he gave her a hug, placed his arms around her, and put his hands in her overalls. A. said he placed his hand inside her panties and inserted his finger into her vagina. Officer Pendley testified he asked A. to be very specific as to the amount of penetration, and A. said appellant put his entire finger into her vagina. A. said that after the incident, appellant told her not to tell anyone and walked out of her room. Officer Pendley asked A. if appellant tried to kiss or touch any other part of her body, and A. said no. He asked if she had been molested prior to these incidents, and A. said no. A. never mentioned an incident in the bathroom.
On February 18, 2002, Officer Pendley received a telephone call from M.L., who reported that A. told her about another incident where appellant walked into the bathroom while A. was taking a bath, he saw her naked, and he later told A. that he liked what he saw.
M.L. testified she called the police numerous times because she was upset about the investigation, and to report A.’s subsequent statements about the molestations. M.L. testified that A. was interviewed by the police a couple of times, but she denied prompting A. to reveal certain details during the interviews, and she only told her to tell the truth. M.L. testified she also called appellant on two occasions. She reached his answering machine in the first call, but he answered the second call and she accused him of molesting A. Appellant said he did not do anything to A.
On March 5, 2002, A. underwent a sexual assault examination. A. told the nurse that appellant went into her room, woke her up, told her to pull down her pants, licked her vagina, left the room, returned and again licked her vagina, and told her not to tell anyone. A. said another incident happened in the daytime, when appellant hugged her, put his hands down her pants, and touched her buttocks and vaginal area. A. described a third incident when appellant saw her in the bathtub, and later said “he liked what he saw.” The physical findings from the examination were entirely normal, consistent with either no molest having occurred, or with the nature of A.’s allegations and the passage of time.
On March 22, 2002, A. was interviewed by a law enforcement official at the Multi-Disciplinary Interview Center in Fresno. A. said that appellant licked her, left the room, then returned and licked her a second time. As to the other incident, A. said appellant touched her body under her overalls but did not insert his finger into her vagina.
A. testified that during her interviews with the officers, she said appellant forced his tongue into her vagina during the “licking” incident, and that incident actually occurred. A. clarified that when appellant put his hand under her overalls, he only touched her and did not put his finger into her vagina. A. testified that M.L. never prompted her to say anything during the interviews with the police.
Randall Robinson, a clinical psychologist, testified as a prosecution expert about the child sexual abuse accommodation syndrome, whereby children often do not report abuse or report it in delayed increments. Robinson explained such children often feel a sense of shame about the abuse, and they typically fear either that they will not be believed or something bad will happen to their families. Robinson explained the syndrome is not a diagnostic tool and should not be used to prove that sexual abuse occurred.
Section 1108 evidenceAs we will discuss in part I, post, the trial court granted the prosecution’s motion to introduce evidence of other sexual abuse committed by appellant pursuant to section 1108. The other incident occurred after the alleged incidents described by A., and involved appellant’s interactions with another girl, E., who did not know A. The prosecution initially tried to consolidate the criminal charges in the two cases, but the consolidation motions were denied. Thereafter, the trial court in A.’s case granted the prosecution’s motion to introduce E.’s allegations in the course of A.’s trial pursuant to section 1108.
Section 1108, subdivision (a) states: “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.”
In the summer of 2004, E. was 11 years old and her parents were separated and going through a divorce. E. lived with her father and his girlfriend, Melinda S. E.’s father was in the military and they lived at Fort Irwin, near Barstow in San Bernardino County.
Appellant was the boyfriend of E.’s mother. E.’s mother met appellant in 2002 while he was installing a mobile home that was parked next to the residence of E.’s great-grandmother in Visalia. Appellant and E.’s mother began living together in that mobile home.
In July and August 2004, E. spent several weeks with her mother and appellant as part of a visitation schedule, and had her own bedroom in the trailer. E.’s older sister, R., lived with and took care of their great-grandmother, and R. often went back and forth between the trailer and the house. R. testified that at some point that summer, in the course of a general conversation, her mother mentioned that appellant had been accused of molesting a girl, but her mother did not seem concerned about the matter. Her mother never told R. to watch out for E., or to make sure that E. was never alone with appellant. E.’s mother worked at a department store during the day, and R. testified there were occasions when appellant and E. were alone in the trailer.
R. testified that her mother complained that appellant insisted on sleeping on a chair and refused to go to bed with her, and her mother decided to sleep on the couch rather than go to bed by herself. Her mother was suspicious and “concerned that something would happen” because she found images of young girls in bikinis on appellant’s computer.
E. testified that during the summer 2004 visit, appellant touched her body on numerous occasions and in different ways. One night, appellant entered her bedroom after she had fallen asleep and placed his hand under her pajamas. He placed his fingers on her breasts, moved his hand down to her vagina, rubbed her vagina, inserted his fingers inside her vagina, and moved his fingers around. E. testified she was scared and “just froze.” Appellant told her not to tell anyone, which made her even more frightened. Appellant entered her bedroom at night and touched her like this on more than one occasion. E. sometimes told him to stop but he ignored her. E. did not tell him to leave the bedroom because she was scared. E. testified that appellant usually slept on the couch, her mother went to sleep in her bedroom, and then appellant would enter E.’s bedroom and touch her. “[A]fter my mom went to bed, he would come to me in my room” and touch her. E.’s mother never saw appellant in E.’s bedroom.
E. testified there was more than one occasion when appellant licked her vagina. E. testified she would be sitting on the living room couch, watching daytime television, when appellant would kneel down next to the couch. He pulled down her pants and underwear, and licked inside her vagina.
E. testified about another type of incident which started when E. was outside and appellant called her into the trailer. He was sitting on a chair, pulled out his penis, grabbed her hand, and put her hand on it. E. withdrew her hand and went back outside. This kind of incident happened more than once.
E. testified about yet another incident when her mother was not home, and she had to go with appellant to the store. She rode on the back of appellant’s motorcycle with him, and he rubbed her thigh.
E. testified these different types of touchings happened more than three times a week while she stayed at the trailer in the summer of 2004. E. did not tell anyone because she was scared appellant would hurt her or her mother. E. did not tell R., her sister who lived next door, because appellant told her not to tell anyone, and E. was afraid appellant would hurt her.
E. testified that appellant told her a story about being with a lady, and the lady would not let him have sex with her unless he first had sex with her daughter. E. had never heard of A. or the name of the girl involved in this story. E.’s mother never told E. to stay away from appellant or not be alone with him at the trailer.
R. testified about an incident with appellant, which occurred when R. took a shower in the trailer. R. saw an image through the shower curtain and appellant pulled back the curtain. Appellant looked at R., laughed, and then left. R. told her mother about the incident, but her mother insisted that appellant was only trying to turn off the water and R. did not hear him knock. R. was partially deaf and conceded she might not have heard appellant knock before he entered the bathroom. However, R. only took showers at the great-grandmother’s house after that incident.
In the middle of August 2004, Melinda S. picked up E. after her visit with her mother and appellant. E. did not say anything to Melinda about appellant’s conduct at that time. E. resumed her life with her father and Melinda at Fort Irwin. Toward the end of September 2004, E.’s mother called Melinda and claimed that E.’s older brother told a school counselor that E. was letting boys touch her at school. E.’s mother wanted Melinda to talk to E. about such conduct.
Melinda testified that as a result of the telephone conversation, she talked with E. about boys and the importance of respecting her body. Melinda told E. that she should not let anyone touch her, and that no one, “your mom, your dad, myself, you know, anybody” should touch her, that E. could always tell Melinda if someone did something wrong to her, and that E. should tell her father or the police if Melinda did something wrong to her. E. started to cry and Melinda asked if her father or mother hurt her, and E. said no. E. kept crying and said “Kris hurt me.” Melinda had no idea who “Kris” was. E. explained “Kris” was her mother’s boyfriend, and that he touched her during her summer visit.
Melinda testified she calmed down E., and then called E.’s father and told him to call the police. Melinda next called E.’s mother, advised her that she talked to E. as requested, and that E. revealed appellant touched her during her summer visit. Melinda told E’s mother that she was going to call the police. Melinda testified that E.’s mother replied, “No, we need to keep this in our family,” and not to call the police. Melinda became angry and upset, said she was going to call the police, and hung up.
On September 19, 2004, Deputy Jeffrey Toll of the San Bernardino Sheriff’s Department interviewed E. at her father’s house. E. stated that she stayed with her mother and appellant in their trailer that summer, and described incidents where appellant woke her up at night, pulled down her underwear, “play[ed] with her” by putting his fingers inside her vagina, and licked her vagina and rectum. E. believed these incidents happened about 10 times, and her mother was asleep in the other room. E. said that on three different occasions, appellant exposed his penis to her while he was sitting down, and she left the room and he did not touch her. E. said that appellant told her that “he couldn’t wait for her to … grow up so that she and [E.’s] mom could have sex together.”
E. was scheduled to participate in a forensic interview with law enforcement authorities in San Bernardino County on October 12, 2004. On the day before the interview, E.’s mother arrived at the father’s house and told Melinda that she wanted to spend the day with E. E. spent the day with her mother at the base hotel. Melinda testified that when E. returned home, E. said she did not want to go to the interview, and that her mother told her not to say what happened and to be on appellant’s side. E. testified her mother told her not to tell anyone because she did not want appellant thrown in jail, appellant would be in jail for a long time, and she did not want to live by herself or on the street. E.’s mother said appellant admitted he touched E. E. told Melinda that her mother said there was another case against him, which happened because the other girl’s mother asked appellant to have sex with the girl. E. did not want her mother to be alone, and she was scared because her mother said that no one would believe her. Melinda and E. had a long talk, and Melinda encouraged E. to be strong and tell the truth. E. attended the interview the next day.
By the summer of 2005, E.’s father had been deployed to Iraq, and E. lived with Melinda in Fort Irwin. E.’s mother still lived with appellant. A revised custody order had been issued which prohibited contact between E. and appellant. E.’s mother arranged to live in a portable travel trailer during the summer so she could have visitation with E. The trailer was parked at the residence of Courtney Street, a friend of E.’s mother. Street had three young daughters who already knew E.
E. testified she played with Street’s children during the summer of 2004 but never told them that appellant was touching her. During the summer of 2005, Street’s children asked E. whether it was true that appellant molested her. E. testified she said yes but did not give any details, and never talked about it with them again.
E. stayed with her mother in June and through the Fourth of July 2005, when E.’s mother asked Melinda to take care of E. because E.’s mother and appellant were going to a motorcycle event over the holiday. Melinda testified that she picked up E., who was crying and upset, and asked Melinda not to send her back to her mother’s trailer. E. said that her mother often left her alone in the trailer, her mother would be gone all night, and E. saw her mother smoke marijuana.
Melinda immediately consulted with local authorities about how she could protect E. in her father’s absence, and obtained an emergency protective order to prevent E. from spending any more time with her mother. In August 2005, a court hearing was held at which E.’s mother said she did not believe E.’s allegations against appellant. The court issued an order for E. to live with Melinda while her father remained in Iraq, and a no-contact order was issued between E. and her mother.
At the time of the instant trial, E.’s father had returned from Iraq. E.’s father and Melinda were no longer in a relationship but Melinda was still her legal guardian. E. lived with Melinda and regularly visited with her father. E. testified that she wanted to live with Melinda rather than her mother, because she was afraid appellant would molest her again if she went back to her mother.
Also at the time of trial, E.’s mother testified she was still living with appellant and admitted she was partially dependent on him financially. E.’s mother testified that shortly after they began dating, appellant told her that a girl in Kingsburg had made allegations against him. E.’s mother claimed that she later warned her daughters, R. and E., about the child abuse allegations and not to be alone with appellant.
E.’s mother testified appellant admitted he asked E. for a “blow job” during the summer of 2004 and E. refused. E.’s mother informed the police of this admission, but later claimed she only told the police because she was angry at appellant. E.’s mother testified appellant also admitted E. saw his exposed penis while he was sitting in the living room, but she believed this was an accident because appellant often pulled down his sweatpants or unzipped his jeans to get comfortable.
E.’s mother described her daughter as a “drama queen” but claimed she did not mean that “in a negative way.” E.’s mother admitted she talked to E. about the charges at the base hotel before E.’s forensic interview, because she wanted to hear E.’s side of the story, and E.’s claims about the incidents “went from ten to two.” She denied trying to persuade E. not to repeat the claims against appellant.
Defense evidence
Appellant did not testify. Courtney Street’s two children, B.L. and H.S., testified for the defense. B.L. and H.S. had known E. for a few years, the children had played together when E. stayed with her mother in the summer of 2004, and E. and her mother had stayed in a travel trailer parked in front of Street’s house in June 2005. B.L. testified she once asked E. if the abuse allegations were true, and E. said no. H.S. testified she also asked E. what happened with appellant, and E. replied, “Nothing really. I just don’t like him.”
Appellant was convicted of two counts of commission of a lewd act upon A., a child under the age of 14 years, and one count of oral copulation of A., a child under the age of 14 years. He was sentenced to six years in state prison. On appeal, he contends the court improperly permitted the prosecution to introduce evidence of his alleged sexual molestation of E. as propensity evidence under section 1108. Appellant notes the prosecution tried and failed to join the instant case with the criminal charges arising out of E.’s allegations, two judges denied consolidation motions because of the prejudicial impact of joinder, and the trial court committed error when it subsequently granted the prosecution’s motion to introduce E.’s allegations pursuant to section 1108. Appellant argues E.’s allegations were unduly prejudicial, the evidence was time-consuming, and section 1108 does not permit introduction of sexual molestation evidence which occurred after the charged offenses. Appellant also contends, and respondent concedes, the term imposed for count III must be stayed under Penal Code section 654.
DISCUSSION
I. Admission of section 1108 evidence.
Appellant contends the court abused its discretion when it permitted the prosecution to introduce evidence that appellant sexually molested E. in 2004. Appellant points to the lengthy procedural history of this issue, in that two different judges denied prosecution motions to consolidate the two pending cases involving A. and E., and asserts the trial court should not have reconsidered those previous rulings on the prejudicial impact of the evidence. Appellant separately contends the trial court should have excluded the evidence as unduly prejudicial, and cites to a comment the court made during trial as to the evidence being too time-consuming. Appellant further argues that the Ninth Circuit has found that admission of such propensity evidence violates due process.
We must review the lengthy procedural history of this case to demonstrate appellant’s arguments are without merit.
A. The charges and pretrial motions.
As set forth ante, appellant was charged with molesting A. in 2001. A. did not tell her grandmother about the molestations until February 2002. The complaint was filed against appellant in January 2003, the information was filed in March 2003, and appellant’s trial was initially set for January 2004 but continued several times.
Prior to trial, the prosecution advised appellant that it was going to move to introduce evidence of another sexual molestation pursuant to section 1108: that in 1991, appellant pleaded no contest to a misdemeanor violation of Penal Code section 243.4, sexual battery, based on an incident that occurred in 1985, when he entered the bedroom of a teenage girl and attempted to have sexual intercourse with her. Appellant argued such evidence was inadmissible under section 1108 because it was prejudicial and remote.
Also as set forth ante, appellant allegedly sexually molested E. in the summer of 2004, and E. revealed the molestations in September 2004. In the meantime, however, the instant case based on A.’s allegations was still pending against appellant. The prosecution subsequently provided appellant with another section 1108 notice, that in the course of the trial based upon A.’s allegations, it intended to introduce evidence that appellant sexually molested E. in 2004. Appellant argued the 2004 incident was not admissible because it occurred after the charged offenses, E.’s allegations were still being investigated by law enforcement officers, and such evidence was unduly prejudicial.
B. Motion for consolidation and joinder.
At some point, criminal charges were filed against appellant in the Superior Court of Tulare County based upon E.’s allegations that he sexually molested her in the summer of 2004. Appellant was charged with two counts of lewd and lascivious conduct on a child under 14 years old (Pen. Code, § 288, subd. (a)), one count of unlawful sexual penetration of a person under 14 years old (Pen. Code, § 289, subd. (j)), and one count of oral copulation of a child under 14 years old (Pen. Code, § 288a, subd. (c)(1)).
On January 31, 2006, prior to any ruling on the pending section 1108 motions, the prosecution moved to consolidate the instant case based on A.’s allegations with the charges that had been filed against appellant based on E.’s allegations. The prosecution argued the two cases should be consolidated because the evidence was cross-admissible under section 1108. Appellant argued consolidation would be extremely prejudicial because the prosecution was trying to join together two weak cases to obtain a spillover effect from the aggregate evidence that would be introduced against him.
On February 15, 2006, Judge Conklin conducted a hearing in the instant case on the prosecution’s motion for consolidation. The prosecutor acknowledged that a motion in limine was pending as to whether appellant’s molestation of E. in 2004 was admissible in the case involving the molestation of A. in 2001. The prosecutor argued the evidence in the two cases was similar and involved the same type of conduct, such that there was cross-admissibility under section 1108, and consolidation would prevent a waste of court resources and not require the victims to testify twice. Appellant argued judicial economy should not prevail over his right to a fair trial, and that E.’s allegations about the 2004 incident were not admissible because there was evidence E. had lied. Appellant cited to the expected testimony of Courtney Street’s two daughters, i.e., E. said the molestations did not occur.
Appellant was represented at this hearing by two attorneys: his retained counsel in the instant case, and the deputy public defender who was representing him in the case based upon E.’s allegations. The court noted there were potential notice problems with the consolidation motion, but the deputy public defender stated he was properly noticed and ready to proceed.
The court was concerned about the prejudicial impact of consolidation and balanced the relevant factors:
“... [T]hese new charges [as to E.] are separated by over three years, they’re completely separate victims and the court is struck by the impact that would occur should these cases be consolidated and the jury hear in the same setting the two charges against [appellant] concerning completely separate victims and the substantial impact they would have.
“All the other arguments I’ve considered. And judicial economy I understand and appreciate without a decision being made as to the other act evidence coming in. At this point the court’s assuming it would not. I recognize the prior conviction that will come in in each case and I agree with you that that prior conviction will be admitted in each case and will assist you in that regard. But I think piling on the similar charge put together is going to have a substantial prejudicial impact on [appellant].” (Italics added.)
The prosecutor replied the Legislature had already addressed the admissibility of propensity evidence when it enacted section 1108 and found such evidence highly probative. The court replied that the prosecutor’s section 1108 argument “almost cuts against you in the sense that I think the prior act, in the court’s perspective, at this point recognizing this is not the court’s ruling on that, that that evidence would likely be admissible and pile on the similar charges coming in from the additional consolidated case would render extreme prejudice.”
The court denied the consolidation motion without prejudice.
“I’ll be candid with you, I’m not sure procedurally what the impact would be if your motion in limine is granted, and at that point if whether or not consolidation would be appropriate to consider again, at that point it may be a more appropriate time to consider it.
“But at this point the court’s going to, again, [deny] the motion on the basis that the prejudicial impact of the charges together outweighs the argument of judicial economy, if the [section] 1108 evidence comes in the way you anticipate it will.” (Italics added.)
On May 22, 2006, the prosecution filed another consolidation motion and again argued the evidence in the two cases was cross-admissible under section 1108.
On June 14, 2006, Judge Gallagher conducted a hearing on the pretrial motions in the instant case, including the prosecution’s second consolidation motion. The court noted the two cases involved different victims and witnesses, and were separated by three years. Appellant argued the consolidation motion had already been addressed by another judge. The court replied the earlier motion had been denied based on the lack of notice.
Judge Gallagher’s statement was incorrect. At the beginning of the February 15, 2006, hearing, Judge Conklin stated there might be a notice problem, but appellant’s deputy public defender replied he was ready to proceed. Judge Conklin denied the first consolidation motion without prejudice and there is no evidence it was denied because of lack of notice.
Appellant argued consolidation would deny his right to a fair trial in both cases, the prosecution was trying to pull together two weak cases, and the evidence of E.’s allegations was unduly prejudicial under section 352. The prosecutor replied the evidence was cross-admissible because section 1108 permitted the introduction of such evidence even if the cases were tried separately. The prosecutor did not believe either case was “much stronger than the other. So the bolstering argument is actually true.”
The court denied the consolidation motion “based upon the chronological separation of three years, coupled with a potential prejudice to [appellant] that occurs when crimes of a sexual nature involving children are tried together, especially when there’s been a three-year separation.”
C. Further section 1108 motions.
On June 9, 2006, while the second consolidation motion was pending, the prosecution filed another motion in limine in the instant case, and sought to introduce E.’s allegations about the 2004 incidents pursuant to section 1108. On October 23, 2006, the prosecution filed another trial brief in the instant case, and argued E.’s allegations from 2004, and appellant’s 1991 misdemeanor conviction, were admissible pursuant to sections 1108 and 1101, subdivision (b).
D. The trial court’s rulings.
On October 23, 2006, appellant’s trial began in the instant case before Judge Putnam, based upon the charges arising from A.’s allegations that he molested her in 2001. The court considered the pending motions in limine as to the admissibility of E.’s allegations about the 2004 incidents, and appellant’s 1991 misdemeanor conviction.
As for the 2004 incident with E., the prosecutor argued appellant engaged in the same type of conduct, in a household at night, as with A., there was no probability of confusion because the two incidents involved separate victims and locations, and the evidence was not unduly prejudicial in light of the pending charges of his conduct toward A. The prosecutor conceded E.’s allegations occurred three years after the charged offenses, but argued the sequence had no bearing in evaluating admissibility under section 1108.
Appellant argued the 1991 misdemeanor conviction was too remote to be introduced under sections 1101 or 1108. Appellant further argued the section 1108 motion as to the 2004 incident should be denied since the prosecution was trying to join together two weak cases, and again asserted that Courtney Street’s daughters would testify that E. said appellant did not do anything to her. Appellant asserted that two other judges denied consolidation motions because of the prejudicial effect of joining the cases.
“[¶] What is happening here is there is an attempt to do an ... end around with the Court’s ruling on the motion to consolidate. The practical effect is that the People get their wish notwithstanding the Court’s order to, to deny the motion to consolidate because they get to, to present both the evidence in both cases in one proceeding.”
Appellant argued that introducing the 2004 incident would permit the jury to overlook the weaknesses in both cases.
“[A]s far as the 2004 case is concerned, I think a court has already ruled that these cases should be tried separately. And that -- a ruling that would make the evidence in that particular case admissible in this case would just -- would not be in the spirit of that ruling by the prior court.”
The prosecutor replied the court was not bound by the other judges’ prior rulings on the consolidation motions because the section 1108 motion required consideration of different legal and factual issues. The prosecutor argued the 2004 incident was admissible as propensity evidence pursuant to section 1108 and People v. Medina (2003) 114 Cal.App.4th 897 (Medina), even though it occurred after the charged offenses. The court took the matter under submission.
As we will discuss post, Medina held that acts of sexual molestation which occur after the charged offenses are admissible as propensity evidence under section 1108. (Medina, supra, 114 Cal.App.4th at p. 903.)
On October 24, 2006, the court held appellant’s 1991 misdemeanor conviction was not admissible because it was too remote, but it might be admissible to impeach appellant if he testified. The court also held that E.’s allegations in the 2004 case were admissible pursuant to section 1108, and relied on case law, which held that section 1108 permitted the introduction of acts of sexual molestation which occurred after the charged offenses.
“… [T]he similarity of conduct is much closer to the charged offense, and [section] 1108 at least from the case law I’ve seen doesn’t distinguish between or require a prior offense to the charged offense. It could be other offenses that occurred after the charged offense, as in this case. I think [it] is admissible under [section] 1108. Certainly relevant under [section] 1108 analysis. Any relevant analysis in terms of the propensity type of evidence and perhaps even under [section] 1101(a) or (b), because of the need for showing of intent or modus operandi, so to speak .... [T]here’s no real indication, the statute or case law, that an offense that allegedly occurred after the charged offense could not be used.
“Under [section] 352 analysis, I think that this particular charge obviously is prejudicial. However, I don’t believe it’s unduly prejudicial under the facts of this case in that we do have similar types of acts. It’s not remote. And I don’t think it take[s] all that much substantial time in having it brought before the Court. And I don’t think it’s going to confuse the issue as it is a similar charge to the one charged here in that it’s a child under 14 at least at the time of the event. So that would be allowed tentatively depending on the testimony of the victim in this case. At this point from what you related to me, it would be admissible evidence. That would be by preponderance of the evidence.”
E. Trial evidence, instructions, and argument.
At trial, as set forth ante, the prosecution introduced evidence as to the substantive charges of appellant’s molestation of A. in 2001, and also introduced the section 1108 evidence of appellant’s molestation of E. in 2004. During direct examination of E.’s sister, R., defense counsel repeatedly objected to the prosecutor’s questions about whether R. was suspicious about certain matters. The court called for a recess, excused the jury, and asked the prosecutor where he was going.
“[THE PROSECUTOR]: [R.] stated that to, to us that [E.] would often come over to take -- supposedly take care of grandma, and it was unusual that she would do that. She suspects that the reason she was doing it is she was trying to get away from [appellant].
“THE COURT: I don’t believe you can go there. I think you just get way beyond what this was supposed to be for.
“[THE PROSECUTOR]: Okay.
“THE COURT: And, quite frankly, if I had known all this was coming in, I think I might have evaluated this a little bit differently because you are just trying another case here, and the whole point of [section] 352 is not to do that.
“[THE PROSECUTOR]: I see what you are saying.
“THE COURT: This is just innuendo and speculation and who knows what all.
“[THE PROSECUTOR]: Okay.
“THE COURT: So I think it’s time to move on.” (Italics added.)
As we will discuss, post, appellant cites to the court’s comments as an indication that it was reconsidering its ruling on the section 1108 motion.
After this exchange, the prosecution continued with additional witnesses as to E.’s allegations about the 2004 incident. Appellant did not testify and the prosecution did not introduce evidence of his 1991 misdemeanor conviction.
F. Motion for New Trial.
After the jury verdicts, appellant retained a new attorney and filed a motion for new trial. He argued the court erroneously admitted the section 1108 evidence of the 2004 incident, and that such evidence was unduly prejudicial under section 352. Appellant argued that when E. made her allegations against appellant, she was aware that the instant case was pending against him and her parents were in the midst of a custody battle. Appellant asserted the court failed to consider these issues when it determined the prejudicial effect of such evidence under section 352. Appellant also raised several issues of ineffective assistance, that his trial counsel failed to call character witnesses who would have rebutted the section 1108 evidence and he failed to investigate E.’s motives behind her 2004 allegations. The prosecution filed opposition and argued the section 1108 evidence based on E.’s testimony was admissible under Medina, even though it occurred subsequent to the charged offenses.
On February 16, 2007, Judge Putnam heard argument on the new trial motion. Defense counsel argued that appellant’s trial counsel failed to adequately oppose the prosecution’s section 1108 motion, and should have introduced evidence of the contentious divorce hearing between E.’s parents, which was likely the motive behind E.’s allegations and Melinda’s testimony.
Defense counsel argued the trial court might have denied the section 1108 motion if appellant’s other attorney had raised these issues. The court replied: “I’m not sure that’s right either. It seems to me that that issue came up. I remember there being a discussion about that.” Defense counsel replied it came up during trial but it should have been raised during the motion in limine to exclude the section 1108 evidence. Counsel further argued that appellant wanted to testify and his attorney encouraged him not to. The prosecutor replied that appellant’s trial attorney ably represented him and cross-examined the complaining witnesses, and that pretrial discovery revealed several witnesses who would have offered negative character evidence if appellant testified.
The court denied the new trial motion and noted it had reviewed the history of the case.
“[I]t appeared to me at that time, and I know [appellant’s trial attorney] is an experienced lawyer, and having several times in my court for trial, and he certainly wasn’t any less at work in this particular case. He put in a great deal of effort. I would say more than placed before the Court the issues such as the [sections] 1108, 1101 issues that we had and, in particular, the in limine motions; those were certainly argued before the Court and the Court made its consideration under [sections] 1108 and 1101 as well as [section] 352 ..., and I considered all those factors. And that is one reason we had the differences between the rather older possible event as opposed to the newer, but I just don’t think there is any basis for the argument that there is an error here either by [trial counsel] or the Court as far as your initial [section] 1108. That was certainly within the limits of the law and certainly probative in this case, and the Court found that more probative [than] prejudicial. So I did allow that one. So I’ll deny it on that ground[].
“As to the ineffectiveness of [trial counsel], this case basically resolved upon several witnesses, not just the victims, in the case. We had evidence from the mother, who I think is here in court today, who is now his wife, I believe, or at least his girlfriend, and that evidence was pretty significant in that she essentially offered evidence that was incriminatory to [appellant]. And on the other hand, there was evidence there that certainly raised issues of credibility I think of her and her daughter. And that was definitely in my mind considered by [trial counsel] in his questioning, and he went thoroughly into that. And as far as any credibility issues it seemed to me that he tested in this case and he brought those things out. Her statements could have been taken either way. They were significant in that they included statements from [appellant] that he did these things and that was whether or not that was to be believed in light of their relationship in what was going on. And with the statements of the various victims as to their being some evidence, it wasn’t brought in or not brought and I haven’t reviewed the transcript. I do recall there was definitely some statements about the divorce pending by one of the ladies. I don’t recall exactly how that went, but it was definitely some discussion about that, but that really wasn’t the issue under [section] 1108 in this case.
“[Section] 1108 deals with the different issue of whether those statements should be brought in and whether or not there [are] other issues involved. It seemed to me that those were covered in this case.” (Italics added.)
The court rejected appellant’s complaint about the failure to call character witnesses because he failed to make any type of offer of proof as to what these witnesses would have presented, that trial counsel strongly challenged A.’s credibility, and the jury had the opportunity to evaluate the witnesses’ testimony on these matters. The court also rejected appellant’s complaint that trial counsel encouraged him not to testify, since that was “certainly a choice between him and his attorney -- and I think [appellant] has been around long enough, and this case was in the system long enough -- to where he certainly could be strong enough to say that he really wanted to testify…. That is an issue that’s between them, and whether or not he testified, that’s certainly, at that point, a matter of them deciding how they want the case to go between them.”
The record reflects that the charges arising from E.’s allegations about the 2004 incident were still pending at the time of the sentencing hearing.
G Analysis.
Appellant contends the trial court abused its discretion when it permitted the prosecution to introduce evidence about E.’s allegations. Appellant argues E.’s allegations were not properly admitted as propensity evidence under section 1108 since the incidents occurred after the charged offenses against A., that two other judges denied the consolidation motions because they found the evidence was not cross-admissible, and the evidence about E.’s allegations was unduly prejudicial, too time-consuming, and confused the jury.
Evidence that a person has a propensity or disposition to commit criminal acts is generally inadmissible, and is excluded because of its highly prejudicial nature. (People v. Karis (1988) 46 Cal.3d 612, 636; § 1101, subd. (b).) The admissibility of character evidence was previously limited to establish some fact other than a person’s character or disposition, such as motive, intent, identity, or common scheme and plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Balcom (1994) 7 Cal.4th 414, 422; People v. Soto (1998) 64 Cal.App.4th 966, 983 (Soto).)
Section 1108 removed the restrictions imposed by section 1101, and permits the jury in sexual offense cases to consider evidence of another charged or uncharged sexual offense for any relevant purpose. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); People v. James (2000) 81 Cal.App.4th 1343, 1353 & fn. 7.) Section 1108, subdivision (a) states:
“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.”
“In enacting ... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of ... section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under ... section 1101, otherwise ... 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, fn. omitted.)
In Falsetta, the California Supreme Court explained that section 1108 was enacted to expand the admissibility of propensity evidence in sex cases. (Falsetta, supra, 21 Cal.4th at p. 911.)
“... [T]he Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 915.)
Falsetta also explained the standards to be applied in assessing the admissibility of evidence of prior sex crimes under section 1108:
“... 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. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its 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. [Citations.]” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Section 1108 has been found constitutional in light of due process and equal protection challenges. (Falsetta, supra, 21 Cal.4th at pp. 907, 917-919; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 (Fitch).) “[T]he trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge.” (Falsetta, supra, 21 Cal.4th at p. 917.) Thus, section 1108 “does not supersede other provisions of the Evidence Code, such as normal hearsay restrictions and the court’s authority to exclude evidence presenting an overriding likelihood of prejudice under section 352. [Citation.]” (Soto, supra, 64 Cal.App.4th at p. 984.)
The admission of propensity evidence pursuant to section 1108 is still subject to the weighing process of section 352. (Falsetta, supra, 21 Cal.4th at p. 916.) The trial court must consider whether the probative value of the evidence is substantially outweighed by the probability that its admission will necessitate undue consumption of time, create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; Fitch, supra, 55 Cal.App.4th at p. 183.) The trial court enjoys broad discretion in making that determination and it will not be disturbed on appeal except on a showing that such discretion was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In Medina, supra, 114 Cal.App.4th 897, the defendant was convicted of multiple felonies arising from the sexual assault of a woman in 1993. In the course of the trial, the court admitted evidence that the defendant committed sexual offenses against another woman in 2001, in an incident completely unrelated to the charged offenses, and found such evidence admissible under section 1108. (Id. at pp. 901-902.) On appeal, the defendant argued section 1108 did not apply to propensity evidence that occurred after the charged offenses, “‘and certainly not where the time gap between the offenses is substantial ….’” (Id. at p. 902.)
Medina held the court properly admitted the 2001 incident as propensity evidence under section 1108, in the course of the trial for charged offenses committed in 1993:
“The plain language of ... section 1108 does not limit evidence of uncharged sexual offenses to those committed prior to the charged offense. On the contrary, the statute broadly states that evidence of the ‘defendant’s commission of another sexual offense,’ is not made inadmissible by the prohibition on the introduction of character evidence contained in ... section 1101. [Citation.] This language strongly suggests that evidence of an uncharged sexual offense committed after the charged offense is within the scope of section 1108. [Citation.]” (Medina, supra, 114 Cal.App.4th at p. 902, italics in original.)
Medina cited to the discussion in People v. Shoemaker (1982) 135 Cal.App.3d 442 (Shoemaker), in support of this conclusion. Shoemaker held that evidence of a victim’s character could be proved by subsequent acts under section 1103.
“The Shoemaker court reasoned: [¶] ‘As Wig more astutely observed, the time of character evidence “ ... as a question of [r]elevancy, is simple enough.... Character at an earlier or later time than that of the deed in question is relevant only on the assumption that it was substantially unchanged in the meantime, i.e. the offer is really of character at one period to prove character at another, and the real question is of relevancy of this evidence to prove character, not of the character to prove the act.” [Citation.] He then concluded that “... there is no difficulty from the point of view of the relevancy of character; a man’s trait or disposition a month or a year after a certain date is as evidential of his trait on that date as his nature a month or a year before that date; because character is a more or less permanent quality and we may make inferences from it either forward or backward.” [Citation.] We find Wigmore’s views compelling. We therefore hold that evidence of the victim’s subsequent acts of violence, when offered by the defendant in a criminal case, is relevant and admissible under section 1103 to prove the victim’s violent character at the time of the earlier crime.’ [Citation.]” (Medina, supra, 114 Cal.App.4th at p. 903, citing Shoemaker, supra, 135 Cal.App.3d at pp. 447-448.)
Medina agreed with Shoemaker “that both prior and subsequent acts may constitute relevant evidence of a person’s character” (Medina, supra, 114 Cal.App.4th at p. 903), and interpreting section 1108 to permit admission of sexual offenses that occur after the charged offense “is consistent with the statute’s purpose of allowing the admission of evidence showing ‘a propensity to commit [sex] crimes.’ [Citation.] We conclude that evidence of subsequently committed sexual offenses may be admitted pursuant to ... section 1108.” (Ibid.)
Medina further held that admission of subsequent propensity evidence under section 1108 did not violate a defendant’s due process rights. The defendant argued that in situations involving subsequent incidents of sexual offenses, there was “‘no commonsense connection to establishing a predisposition to having committed a prior offense.’” (Medina, supra, 114 Cal.App.4th at p. 904, italics in original.)
“What [the defendant] fails to acknowledge is that section 1108 is not limited to evidence that establishes a predisposition on the part of the defendant to commit a sexual offense. Rather, it permits evidence of the defendant’s commission of ‘another sexual offense or offenses’ to establish the defendant’s propensity to commit sexual offenses. There is no requirement that the other offenses precede in time the charged offense. [Citation.] We reject [the defendant’s] claim that . . . section 1108 violates due process to the extent it authorizes the admission of evidence of uncharged sexual offenses committed after the charged offense.” (Ibid., italics in original.)
In the instant case, the trial court properly found that evidence of appellant’s alleged sexual molestation of E. in 2004 was admissible as propensity evidence under section 1108, and did not abuse its discretion in admitting this evidence. As explained in Falsetta and other cases, the purpose of section 1108 is to permit the trier of fact in a sexual offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes, given the Legislature’s determination that such evidence is so uniquely probative in sex crime prosecutions that it is presumed admissible without regard to the limitations of section 1101. Such evidence was extremely probative in this case because it involved two girls who were very close in age -- nine and 11 years old -- and appellant engaging in extremely similar conduct. As to A., appellant was a frequent visitor in her house, often stayed late, stayed overnight once, and took advantage of these situations to enter A.’s bedroom, fondle her breasts, buttocks, and vagina, digitally penetrate her vagina, and perform acts of oral copulation on her vagina. As for E., appellant shared a trailer with her for several weeks, he was often alone with her during the day, and even E.’s mother realized appellant preferred to sleep in the living room and refused to go into the bedroom he shared with his girlfriend. Appellant used these opportunities to enter E.’s bedroom at night, fondle her breasts and vagina, digitally penetrate her vagina, and perform acts of oral copulation on her vagina. The evidence of appellant’s sexual molestation of E. was thus highly probative and exactly the type of evidence anticipated by section 1108.
Appellant repeatedly argued below that E.’s allegations were not admissible because the incidents occurred in 2004, whereas he was being tried for offenses committed in 2001, and section 1108 only permitted the admission of propensity evidence which occurred before the charged offenses. Indeed, the two judges who addressed and denied the consolidation motions apparently believed the evidence was not cross-admissible because the molestation of E. occurred after the offenses committed against A. However, the trial court had the benefit of the reasoning in Medina and correctly concluded that subsequent sexual offenses were admissible as propensity evidence under section 1108. On appeal, appellant renews his argument that the uncharged acts were not admissible because they occurred three years after the charged offenses. However, neither appellant nor respondent have cited Medina in their briefing before this court, even though it was brought to the trial court’s attention during the argument on the section 1108 evidence.
Appellant argues that even if subsequent acts are admissible under section 1108, the passage of three years rendered the 2004 incidents as too attenuated to be probative in the trial of the offenses committed against A. in 2001. In Medina, however, the defendant therein was charged with sexual offenses that occurred in 1993, and the court held that subsequent sexual offenses that occurred in 2001 were properly admitted under section 1108. The three-year time span in this case was not unduly prejudicial given the holding in Medina.
Appellant also complains that in addition to section 1108 and propensity issues, the jury herein was also instructed to consider E.’s allegations to determine the perpetrator’s identity and/or intent, and argues such issues were not contested and only relevant if E.’s allegations were admitted under section 1101, subdivision (b). The identical argument was considered in People v. Britt (2002) 104 Cal.App.4th 500 (Britt), where evidence of the defendant’s other sexual misconduct was admitted under section 1108, and the jury was instructed that it could consider such evidence as to both propensity and intent. (Id. at p. 504.) Britt noted the enactment of section 1108 removed “the restriction on character evidence in section 1101,” so that section 1108 now permitted the jury in a sex offense case “‘to consider evidence of prior offenses for any relevant purpose’ [citation] ….” (Britt, supra, 104 Cal.App.4th at p. 505, italics in original.)
“The flawed premise in [the defendant’s] argument is that section 1101, subdivision (b)’s test for admissibility of prior uncharged offenses in a sex offense case survived the enactment of section 1108. It did not. ‘In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101 .’ (People v. Yovanov (1999) 69 Cal.App.4th 392, 405 ..., italics added.) When section 1108 swept away the general prohibition on character evidence set forth in section 1101, it rendered moot the exceptions to that prohibition created by section 1101, subdivision (b). Thus, in a sex crime prosecution, the ‘signature test’ is no longer the yardstick for admission of uncharged sexual misconduct to prove identity.” (Britt, supra, 104 Cal.App.4th at pp. 505-506.)
Britt cited to Falsetta for the proposition that section 1108 permitted courts to admit such evidence without a precondition of finding a relevant, non character purpose, which “‘“‘includes consideration of the other sexual offenses as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.’”’ [Citation.]” (Britt, supra, 104 Cal.App.4th at p. 506, italics in original, citing Falsetta, supra, 21 Cal.4th at p. 912.)
“Sex crime trials inevitably turn on whether the defendant has been falsely accused. The central issue in these cases commonly involves not just whether the conduct took place as the victim described it, but whether the defendant was the one who perpetrated it. Section 1108 assists the jury’s task by allowing the accused’s sexual misconduct history to be considered for whatever light it might shed on these issues, including a defendant’s claim of mistaken identity.” (Britt, supra, 104 Cal.App.4th at p. 506.)
As in Britt, appellant’s defense was that he had been falsely accused by A. and he never committed the charged offenses. Thus, the section 1108 evidence of E.’s allegations assisted the jury by allowing it to consider appellant’s sexual misconduct “for whatever light it might shed on these issues.” (Britt, supra, 104 Cal.App.4th at p. 506.)
Appellant next challenges the inherent ability of the trial court to rule on the admissibility of the section 1108 evidence. Appellant contends that on the first day of trial, Judge Putnam improperly addressed the admissibility of E.’s allegations under section 1108, since two other judges had already denied the prosecution’s motions to consolidate the two cases, those judges found the evidence was not cross-admissible in a consolidated case, and Judge Conklin particularly found consolidation would be extremely prejudicial to appellant. Appellant contends Judge Putnam lacked the ability to reconsider the prior rulings in the consolidation motions which addressed the potential prejudicial impact of E.’s allegations.
It is a well-recognized proposition that in criminal cases there are few limits on a trial court’s power to reconsider interim rulings. However, the general rule does not apply when a different judge reconsiders the interim ruling, and one superior court judge may not reconsider the previous ruling of another superior court judge, unless the first order was made through inadvertence, mistake, or fraud. (People v. Goodwill ie (2007) 147 Cal.App.4th 695, 712-713; In re Alberto (2002) 102 Cal.App.4th 421, 426-428.)
In the instant case, however, the prior judicial rulings addressed whether the criminal cases involving the allegations from A. and E. should be joined and consolidated under Penal Code section 954, which involved different considerations of fact and law from an evidentiary ruling under section 1108. Penal Code section 954 provides that an accusatory pleading may “charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” If the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion by consolidating counts. (People v. Mendoza (2000) 24 Cal.4th 130, 160-161.) In determining whether the trial court has abused its discretion, we consider the following factors: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (Id. at p. 161.) “Cross-admissibility is the crucial factor affecting prejudice. [Citation.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled. [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 531-532.)
Judges Conklin and Gallagher conducted pretrial hearings as to whether to grant the prosecution’s motion to consolidate the charges arising from A. and E. At the time of both hearings, the prosecution’s motion was still pending as to section 1108, to introduce E.’s allegations in the trial on A.’s allegations. At the hearings, both judges reviewed the factual and legal factors as to joinder and consolidation, and both were not entirely sure whether E.’s allegations were admissible as section 1108 propensity evidence since the incidents occurred after the charged offenses based on A.’s allegations. Judge Conklin admitted he was not sure what the impact would be if the prosecution’s section 1108 motion was granted, and that consolidation might be reconsidered at that point given the issues as to cross-admissibility.
In any event, Judge Putnam did not begin the first day of trial by reconsidering the consolidation motions. Instead, he was the first and only judge to consider the prosecution’s section 1108 evidentiary motion on the merits. He reviewed the parties’ pleadings, heard argument, took the matter under submission, and found that E.’s allegations were admissible, primarily under the case law set forth in Medina. While cross-admissibility may have been a factor in the consolidation motions, the prior rulings on the consolidation motions did not foreclose Judge Putnam from addressing the section 1108 motion on the merits.
Appellant repeatedly argued below that permitting the prosecution to introduce E.’s allegations under section 1108 was unduly prejudicial because it merely allowed the prosecution to bootstrap together two weak cases. However, the entirety of the record reflects that the case based on appellant’s sexual molestation of A. was far from weak. A. was extremely consistent in her description of appellant’s conduct, the circumstances in which he confronted her, her fear of disclosing the information, and her ultimate decision to tell her grandmother what appellant did to her. While there was no physical evidence of the molestations, several months passed between appellant’s molestation of A. and the girl’s decision to tell her grandmother, and appellant engaged in conduct that was not consistent with leaving physical evidence.
Appellant asserts that while the court granted the section 1108 motion, it had second thoughts about the matter based on comments it made during the trial. As noted ante, when the court addressed appellant’s objections to the prosecutor’s questions to E.’s sister, about whether she suspected appellant of doing something, it commented, “And, quite frankly, if I had known all this was coming in, I think I might have evaluated this a little bit differently because you are just trying another case here, and the whole point of [section] 352 is not to do that,” and “This is just innuendo and speculation and who knows what all.” The court might have been exasperated or frustrated with the prosecutor’s questions on this point, but any inference that the court might have been reconsidering its ruling on the section 1108 motion is refuted by the court’s subsequent ruling on appellant’s motion for new trial. Indeed, appellant specifically argued that a new trial should be granted because the trial evidence of E.’s allegations was unduly prejudicial. The court denied the new trial motion and found the evidence was “within the limits of the law and certainly probative in this case,” and the evidence “more probative [than] prejudicial.”
Finally, appellant contends the admission of propensity evidence violated his due process rights and Falsetta must be reconsidered in light of Garceau v. Wood ford (9th Cir. 2001) 275 F.3d 769 (Garceau), reversed on other grounds in Wood ford v. Garceau (2003) 538 U.S. 202, 210. This argument is merit less. First, we note that even on federal questions, Ninth Circuit cases do not bind the state courts. (See People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)
Second, there is nothing in Garceau to suggest that it is relevant to the admission of prior sex offenses in a sex offense case or undermines the validity of section 1108. Garceau addressed whether the defendant’s prior murder conviction and manufacture of illegal drugs were properly admitted as propensity evidence in a murder trial. (Garceau, supra, 275 F.3d at p. 773.) In People v. Garceau (1993) 6 Cal.4th 140, 185-187 (overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118), the California Supreme Court held the admission of prior crimes evidence to show propensity to commit murder violated California law but the error was harmless. The Ninth Circuit disagreed and held the jury was improperly instructed to infer criminal propensity from the other crimes testimony and the error was not harmless. (Garceau, supra, 275 F.3d at p. 777.) There is nothing in Garceau which casts doubt on Falsetta’s conclusion that section 1108 is constitutional.
Furthermore, we note the Ninth Circuit has rejected a similar constitutional challenge to an analogous federal rule. Rule 414 of the Federal Rules of Evidence provides that another offense of child molestation is admissible for any relevant purpose in a child molestation prosecution. Rule 414 is one of several federal evidentiary rules upon which section 1108 was modeled. (Soto, supra, 64 Cal.App.4th 966, 980.) In U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018 (LeMay), the Ninth Circuit rejected constitutional attacks on Rule 414. (Id. at pp. 1030-1031.) In doing so, the Ninth Circuit utilized a rationale similar to that used in Falsetta and relied on rule 403 of the Federal Rules of Evidence, the federal analog to section 352, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. (LeMay, supra, 260 F.3d at pp. 1026-1027.) LeMay held that rule 414 was constitutional because rule 403 remains applicable to evidence introduced under rule 414, and, “if conscientiously applied, will protect defendants from propensity evidence so inflammatory as to jeopardize their right to a fair trial.” (LeMay, supra, 260 F.3d at p. 1022.) Thus, it appears the Ninth Circuit has rejected appellant’s interpretation of Garceau.
We thus conclude the trial court properly admitted evidence of E.’s allegations under section 1108, Medina permits the admission of subsequent acts as propensity evidence, Britt permits section 1108 evidence to be used to establish identity and/or intent, Judge Putnam was not foreclosed from addressing the section 1108 motion on the merits, and the admission of propensity evidence has not been undermined by Garceau.
II. Count III.
Appellant was convicted of counts I and II, commission of a lewd act upon A., and count III, oral copulation of A. The court imposed the midterm of six years for count I, with concurrent midterms of six years for counts II and III. Appellant contends, and respondent concedes, that the concurrent sentence imposed for count III must be stayed pursuant to Penal Code section 654.
DISPOSITION
The concurrent term imposed for count III is stayed pursuant to Penal Code section 654. The superior court is directed to prepare an amended abstract of judgment reflecting this modification and to transmit it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Gomes, J. Dawson, J.