Opinion
G051853
04-03-2017
THE PEOPLE, Plaintiff and Respondent, v. LUTHER PETE HAYNES, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 95WF1289) OPINION Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino and W. Michael Hayes, Judges. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Luther Pete Haynes of felony child molestation (Pen. Code, § 647.6, subd. (c)(2); all further statutory references are to this code unless noted). In a bifurcated proceeding, the trial court also found Haynes's two prior convictions for lewd and lascivious conduct with children under the age of 14 (§ 288, subd. (a)) constituted serious and violent crimes under the "Three Strikes" law (§§ 667, subds. (b)-(i); 1170, subds. (a)-(d)). Consequently, the court sentenced Haynes under the Three Strikes law to an indeterminate term of 25 years to life in prison. Haynes contends the trial court's failure to grant his pretrial motion to dismiss the child molestation charge violated his right to a speedy trial and due process. He also argues the court erred in a pretrial hearing by failing to preclude the prosecutor from offering evidence under Evidence Code section 1108 of his two prior child sex offenses. As we explain, these challenges to his conviction fail, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
E.B.'s mother hosted a pool party at her apartment complex for her coworkers from a paleontology firm, including Haynes. E.B. was 11 years old at the time, and Haynes exposed his penis and testicles to her in the pool. He had been swimming close to her and taking pictures of her with a disposable camera. He approached her from the deep end of the pool when she was in the shallow end. She exited the pool, but he handed her the camera and directed her to take a picture of him. As she went to take the picture, she noticed he had pulled down his swim trunks. The water was just above his waist, but she could clearly see his genitals. She was upset and surprised, but she did as she was told, pressing the button to take the picture, and she then hurried over to the hot tub area near where her mother was sitting. At some point, she gave the camera to her mother wanting her to hide it, but she did not say anything about what had happened because she was embarrassed and other guests were present. Haynes managed to retrieve the camera before he left.
It was not the first time he had exposed himself to E.B. A few weeks or months earlier, E.B. had been sitting at a desk near her mother's bedroom in their apartment while Haynes was visiting. She looked up and saw Haynes in her mother's room. The door was open and he was facing her with his pants down, exposing his genitals. He maintained eye contact with her, but she told herself the exposure was not "necessarily intentional" and maybe he had simply forgotten to close the door while changing. So she rolled her eyes, "scoffed," and went to join others in the apartment, but did not tell anyone.
But she was certain Haynes deliberately exposed himself to her at the pool and told her mother the next day on January 15, 1995.
Her mother (Mary A.) knew where Haynes had photographs developed for the paleontology firm and tried to persuade the shop owner to let her see any pictures from rolls of film Haynes had recently dropped off. It is not clear whether she told the owner why she wanted to see the photographs. In any event, he refused because Haynes had submitted the film under his employer's account.
On January 17, 1995, Mary called the employer, John Minch, "briefly explained" what had happened, and asked him to retrieve the photographs. Minch assented and invited her to meet him to view the photos. According to Mary, by the time she arrived, he had already "separated . . . out" the pool party pictures from other pictures, including fossil photographs. But she saw nothing inappropriate in any of the pictures; in fact, they were all "pretty blurry" and appeared to have been taken underwater for the most part. None depicted anything inappropriate; none showed Haynes or anyone exposing their genitals or engaging in any other sexual conduct.
E.B. testified she did not think the camera was capable of underwater pictures because she did not believe that technology was available at the time.
According to Mary, Minch kept the photographs, but he testified he left them at the photography store to be picked up later, which he believed Haynes must have done because Minch later saw the fossil photographs in a work journal. Minch explained that the shop owner also viewed the photographs. In any event, like Mary, Minch agreed the photographs did not show Haynes exposing himself or anything inappropriate. But Minch claimed Mary threatened she would "get" Haynes. When Minch went back to his workplace, he told Haynes that Mary accused him of taking "inappropriate photographs" of her daughter.
According to Mary, Haynes then called her and apologized profusely, stating he was "so sorry" and imploring her not to call the police. Mary hung up on him.
Marian Barnes, a volunteer paleontologist, had been one of the guests at the pool party. She saw E.B. and Haynes in the pool together jumping off the diving board, and she saw a camera flash at some point, but she did not observe anything untoward. She helped Mary try to obtain copies of the pictures developed at the photography store, to no avail. On January 17, 1995, she received at least three phone calls from Haynes, who was upset because Mary would not talk to him. He urged Barnes to persuade Mary not to call the police and, in return, promised to do whatever Mary wanted.
On January 20, 1995, Mary reported the incident to Fountain Valley Police Department Patrol Officer Harry Harrison, who interviewed her and E.B. at their apartment. According to Harrison, Mary told him she picked up the photographs from the photography shop, but he acknowledged at trial that he had almost no independent recall of the event and instead relied on the report he later prepared, which he admitted was somewhat cryptic. Harrison obtained Haynes's name, date of birth, address, driver's license number, and an identifying photograph, and then turned the case over to a detective for a more detailed investigation.
Mary called Haynes and left a message for him after the police interview. She claimed he called her back and offered her money, his vehicle, and that he "would do anything to make it up to [her]." She warned him not to call her again.
Detective Kim Brown of the sex crimes unit interviewed E.B. and Mary at the police station on January 24, 1995. E.B. described the pool incident and also told Brown about the time Haynes exposed himself to her inside the apartment. Mary later testified at trial that she had recorded on her answering machine one of Haynes's apologetic telephone calls, and gave the recording to Brown. But Brown had no recollection of the recording and had not noted it in her police report, which she would have done if she received evidence from a reporting party. After interviewing E.B. and Mary, Brown interviewed Minch before attempting to contact Haynes.
Over the next few days, Mary attempted to contact Haynes without success, and she became concerned he had left for the Philippines, where he and his wife had property. She knew before the pool party that Haynes had mentioned planning to travel to the Philippines for a few months, which he did from time to time. She contacted Detective Brown to inform her Haynes might have left the country and that he had said he would be returning around May. Brown called the airline Mary believed Haynes would have used, Continental Airlines, but she was not able to discover whether Haynes had been on any of the company's flights to the Philippines. Brown later noted that in 1995, before the 9/11 tragedy, airlines were not as diligent in recordkeeping and, moreover, a person could easily fly under an assumed name. But there was no evidence Haynes had done so. Brown completed her report on April 24, 1995, submitted it to the district attorney's office, which filed its felony complaint in June 1995, and an arrest warrant issued that month.
But it turns out Haynes and his wife, who also had been at the pool party, had gone to the Philippines in February 1995. Minch later explained in a pretrial hearing in 2014, after Haynes was "brought back" from the Philippines, that he had taken the couple to the airport on or around February 6, 1995. Haynes had provided Minch written notice in December 1994 of his impending trip, and Minch noted Haynes worked hard to get his job done curing fossils for Minch before he left. Minch knew Haynes wanted to return within several months if there was work to do, but after a few months passed, Minch spoke to Haynes by telephone to let him know he had no new projects for him. Minch later received correspondence from Haynes and fliers advertising the resort property Haynes and his wife developed and operated in the Philippines.
Haynes's wife testified at trial that her husband had been "brought back" to the United States from the Philippines, apparently in August 2014. The jury was not told that he was accompanied by a U.S. Marshall upon his return, and it was not clear whether he had been deported by the Filipino government or was extradited by United States officials.
Haynes's longtime friend, John Smith, also explained at the pretrial hearing that in late January 1995, he and Haynes had driven Haynes's van and many belongings to the East Coast to store the van, visit Smith's family and several Civil War battlefields, and to ship the belongings to the Philippines. The trip had been finalized in early January, three weeks in advance before their departure on or around January 27, 1995. Smith knew it was Haynes's long-range goal to develop a surfing resort in the Philippines. Haynes had made similar trips to the Philippines in the past, but returned for work when he needed funds to develop his property. After storing the van and shipping Haynes and his wife's goods, Haynes and Smith flew back to California, where Minch later took them to Los Angeles International Airport for their Philippines flight.
Haynes and his wife returned with their daughter to the United States in 2001 to work for Minch on a "big job" that lasted around seven months. Haynes renewed his passport at the U.S. Embassy in the Philippines for his return. Once in Orange County, however, they did not rent a car, but instead borrowed one of Minch's old work trucks, and Minch paid both of them as contractors. They did not check into or stay in a hotel during their visit, living instead at a friend's home. Haynes was not picked up by the police on his arrest warrant, which remained outstanding. He even traveled to Mexico with his family in Minch's truck and to Florida to visit his mother, where the truck broke down before they flew out again for the Philippines. While he was living in California, Haynes did not register as a sex offender as he was required to do under his previous child sex offense convictions.
Among other pretrial motions, Haynes's sought to exclude evidence of those prior convictions as more prejudicial than probative, but the trial court denied his motion. At trial, Haynes entered a stipulation alerting the jury he had pleaded guilty to molesting both of those victims, and the victims testified briefly. The first, Shannon A., explained that when she was 11 or 12 years old in June 1983, Haynes was her neighbor and her parents' friend, and she accompanied him to the beach with one of her friends, Dona, and Dona's father. When Dona's father went surfing, Haynes approached her and Dona with a camera and asked them to do "the splits." Both girls heeded his direction, and when Haynes told them to pull their bathing suit bottoms aside to expose their genitals, Dona complied, but Shannon felt "uncomfortable" and did not.
The stipulation also noted that the police reports from those offenses were no longer available.
Haynes took the children out to the reef, where he had the girls sit on his lap while he had an erection. When they returned from the beach, Haynes invited Shannon into her apartment, but she declined, and told her mother what happened. Her mother contacted the police, and Haynes pleaded guilty to committing a lewd and lascivious act on a child under age 14 (§ 288, subd. (a)) by touching Shannon in a sexual manner.
Elizabeth H. also testified and explained that in 1980, she was nine years old, Haynes was her parents' friend, and he lived in the neighborhood. He approached her on a February afternoon while she was playing outside with her little sister, and told her that her parents had given him permission to take her picture at the beach.
During the drive to the beach, Haynes asked her to sit on his lap and when she complied, she felt his erect penis. He reached into his pants, pulled out his penis, and "scooted [her] over a little bit more on top of him." She was wearing a short dress and felt his penis on her bare skin. At the beach, he took pictures of her sitting on a rock, but when they returned to his van, he had her lay face down in the back. He removed her underpants and got on top of her. He placed his penis between her legs, removed it for a minute, and then when he put it back between her legs, she felt it was "wet."
She did not have any memory of what happened after that, until she found herself back at Haynes's home. He gave her ice cream and made what she considered a threat, stating, "[W]e wouldn't want anything to happen to your little sister, so we shouldn't tell anybody about this." Elizabeth told her mother that night, and submitted to a police interview and a sexual assault examination. Haynes again pleaded guilty to lewd and lascivious touching of a minor. (§ 288, subd. (a).)
II
DISCUSSION
A. Speedy Trial
Haynes contends the delay of more than 19 years between the pool incident in January 1995, his arrest and arraignment in 2014, and trial in early 2015 violated his right to a speedy trial under the California Constitution (art. I, § 15) and to due process under the federal and state constitutions. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7.) The prosecutor filed a felony complaint on June 28, 1995, and an arrest warrant issued two days later, but Haynes was not "brought back" to the United States from the Philippines until sometime in 2014, and the district attorney filed an information later that year, in October 2014. Haynes was 62 years old at the time. He concedes the Sixth Amendment's speedy trial right does not apply because it is triggered by the formal accusation and probable cause finding in an indictment or by the arraignment actually commencing trial proceedings. (People v. Martinez (2000) 22 Cal.4th 750, 762-763 (Martinez).)
1. Governing Law
"[T]he primary safeguards against [prosecutorial] delay" are "statutes of limitations and the constitutional guarantee of a speedy trial." (People v. Booth (2016) 3 Cal.App.5th 1284, 1302.) In contrast to the Sixth Amendment, the state constitutional speedy trial right attaches when a felony complaint is filed (Martinez, supra, 22 Cal.4th at p. 754), but prejudice is never presumed, even from a lengthy delay. Instead, the defendant "must affirmatively demonstrate prejudice" from any delay preceding formal accusation or arrest (id. at p. 755). The right to due process under the state Constitution similarly extends back to the preaccusation, prearrest period and, unlike the Sixth Amendment, federal due process principles also apply. (People v. Catlin (2001) 26 Cal.4th 81, 107 [delay before arrest or filing indictment or information "may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions"]; see also Martinez, at p. 765 [federal Due Process Clause spans "any gap" before Sixth Amendment speedy trial right engages].)
The limitations period for a felony violation of section 647.6, subdivision (c)(2), is three years. (People v. Shaw (2009) 177 Cal.App.4th 92, 98-100; see People v. Turner (2005) 134 Cal.App.4th 1591, 1596-1597 [Three Strikes law does not alter limitations period for charged offense].) It does not appear defense counsel asserted a statute of limitations defense, and we express no opinion on the issue.
When as here the delay accrues in the postcomplaint, prearrest period and the defendant has not in that time frame been "subject to restraints following arrest and has not been held to answer or formally charged" by an indictment, the defendant's due process and speedy trial rights are essentially coextensive. (Martinez, supra, 22 Cal.4th at p. 768.) Because these interests are the same "whether the claim is characterized as a speedy trial or due process issue, the same balancing approach is utilized," namely, any "prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505 & fn. 9 (Scherling); accord, Barker v. Wingo (1972) 407 U.S. 514, 530 [balancing test requires consideration of length of delay, its cause, and prejudice to defense].) "The ultimate inquiry" in examining the delay is simply "whether the defendant will be denied a fair trial." (Scherling, at p. 507.)
It is the defendant's burden to demonstrate prejudice arising from the delay. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1328 (Mirenda) [due process claim under federal or state Constitution]; People v. Roybal (1998) 19 Cal.4th 481, 513 [state speedy trial claim].) The defendant must establish actual prejudice shown by particular facts, not bare conclusory statements. (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442 (Crockett); United States v. Marion (1971) 404 U.S. 307, 325 [assessment of trial's fairness "will necessarily involve a delicate judgment based on the circumstances of each case"].)
Prejudice "'"may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay." [Citations.]' The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice." (Mirenda, supra, 174 Cal.App.4th at p. 1328.)
Even a "minimal," prima facie showing of prejudice requires the prosecution to explain the reasons for the delay. (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1540-1541.) But it follows from the nature of a balancing test that if the evidence reveals no prejudice, "the court need not inquire into the justification for the delay since there is nothing to 'weigh' such justification against." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911 (Dunn-Gonzalez).) Put another way, the balancing test functions on a sliding scale: a minimal showing of prejudice may require dismissal when measured against petty or insubstantial reasons for the delay and, by the same token, more reasonable delay requires the defendant to show greater prejudice to scuttle charges or a conviction. (Mirenda, supra, 174 Cal.App.4th at p. 1327.)
"Whether prearrest delay is unreasonable and prejudicial to the defendant is a question of fact." (Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912.) It follows, therefore, that "[t]he trial court's ruling must be upheld on appeal if it is supported by substantial evidence." (Id. at p. 912.) The purpose of the right to a speedy trial is to protect the accused from prejudice caused "'"either by willful oppression . . . or the neglect of the state or its officers."'" (Jones v. Superior Court (1970) 3 Cal.3d 734, 738 (Jones).) Consequently, "[w]hen unjustified prejudice to the defendant's ability to defend has been established . . . dismissal [is] required." (Serna v. Superior Court (1985) 40 Cal.3d 239, 263-264.)
The Attorney General argues Haynes waived his speedy trial claim by fleeing to the Philippines (see People v. Garcia (2014) 223 Cal.App.4th 1173, 1178), but the trial court made no express finding he departed to avoid prosecution. The trial court also did not find the police or prosecutor notified customs officials of Haynes's warrant or to watch for his reentry, nor that either had attempted to locate Haynes in the Philippines or requested federal authorities to extradite him. The court implicitly concluded that even if they had not done so, the delay — whatever its cause — did not prejudice Haynes. --------
2. Particular Claims of Prejudice
Haynes contends the lengthy delay before his arrest and trial prejudiced him in four specific ways. First, he could not use the photographs from the pool party, which had disappeared, to show the jury he did not expose himself to E.B. as she claimed. Second, the purging of police records concerning Shannon's and Elizabeth's earlier allegations deprived him of police reports that may have been useful to impeach details in their testimony while, conversely, in the alleged pool incident involving Erin, the investigating officers' lack of independent recall apart from their police reports also prejudiced him. Third, the enactment of section 1108 in 1996 harmed him by providing for the admission of propensity evidence. And fourth, he could not obtain telephone records to possibly impeach claims he called Barnes and E.B.'s mother to implore them not to call the police.
These claims do not meet Haynes's burden to establish prejudice. As the trial court observed, they are largely speculative or conclusory and, in any event, the lack of tangible evidence such as photographs or a supposed recording on E.B.'s mother's answering machine inured to the benefit of the defense, not the prosecution. Haynes claims the photographs were particularly important because "a picture is worth a thousand words." He reiterates defense counsel's claim below that, if the photos had not disappeared in the intervening years, "Perhaps we could have shown that [photograph] and said, look here he is in the water. He's not exposing himself. This is the incident [E.B.] was referring to" when she claimed Haynes directed her to take his picture. Haynes also asserts that because "the photography shop no longer existed in 2014" he was prejudiced because he "lost the opportunity to find, interview, and call as a witness . . . the photography shop employee who developed the film," nor could he obtain the negatives.
Nothing suggests, however, that a photography shop would retain a customer's negatives. More importantly, both a defense witness (Minch) and a prosecution witness (E.B.'s mother) explained they did review the photographs when they were developed and they agreed they depicted nothing inappropriate, which supported Haynes's defense. It is speculative to assume a photo shop employee would have had details to add that would aid Haynes. The trial court observed that E.B. seemed to suggest that by taking the picture, she bolstered her claim Haynes exposed himself, but the absence of the pictures undercut her testimony. As the trial court put it, "[The] evidence . . . before the jury . . . refuted essentially what [E.B.] said," in that "everybody else [agreed], 'I — we never saw any inappropriate pictures,' including her mom." Where some evidence supports the trial court's conclusion there was no prejudice, as here, we may not "reweigh it." (People v. Hill (1984) 37 Cal.3d 491, 499 ["[p]rejudice is a factual question to be determined by the trial court" and thus, "the factual conflict was to be won or lost at the trial level"].)
Haynes's claim of prejudice arising from the absence of police reports concerning the earlier victims or independent recall by the officers investigating E.B.'s claim similarly fail, but for the opposite reason as the photographs. It was clear the pool photographs depicted nothing incriminating and Haynes had the benefit of that testimony, but his claim that earlier police reports "may have" included inconsistent statements by Shannon or Elizabeth was purely speculative. "[B]are conclusionary statements" that "delay has precluded [the defendant] from fully investigating the accuracy of [witness] statements" do not show actual prejudice. (Crockett, supra, 14 Cal.3d at p. 442.) Haynes's hope that the police reports might have furnished impeachment grounds was wholly speculative, and the trial court therefore properly disregarded it because it was his burden to establish prejudice. (Ibid.)
Moreover, neither Shannon nor Elizabeth expressed any difficulty in recalling the important aspects of their childhood encounters with Haynes. Additionally, the prosecutor turned over to the defense audio recordings of her investigator's pretrial interviews with both girls, now adult women, so Haynes had the opportunity to prepare for and dispute their recollection of what he had done. Nothing suggested he had difficulty recalling any mitigating details in his encounter with either of them. It was pure speculation that either witness may have added or subtracted important facts in their testimony about offenses Haynes admitted.
Haynes claims he suffered similar prejudice because the officers investigating the pool incident had to rely so heavily on their reports. In effect, he argues that if they could independently recall their investigative steps, it would have benefitted him. But that turns his burden to demonstrate prejudice on its head. As it was, the officers' reports supported Haynes, whereas their independent recollection offered him no benefit. Specifically, their reports were useful for casting doubt on the credibility of E.B.'s mother because she claimed she had given the police an inculpatory message Haynes left on her answering machine, but nothing in the police reports supported that claim. Similarly, she told Officer Harrison that she had picked up the pool party photographs, but no evidence supported that claim; to the contrary, her testimony at trial contradicted it. Consequently, Haynes's claim that something the officers must have forgotten would have aided him, as evidenced by their lack of independent recall of their investigation, was merely speculative and therefore furnished no support for his speedy trial or due process claims.
The same is true for his claim that he was prejudiced by delay because in the interim Evidence Code section 1108 was enacted, under which his prior sex crimes were introduced at trial. (All further statutory citations are to this code, unless noted.) This tack fails for several reasons. First, section 1108 became law on January 1, 1996, less than a year after Haynes exposed himself to E.B. (See People v. Davis (2009) 46 Cal.4th 539, 603, fn. 6 [no ex post facto violation in applying section 1108 to an offense occurring before its enactment].) It is far from clear that even if Haynes had not departed for the Philippines, he would have been brought to trial before its effective date. Moreover, he cannot rewrite history: he did leave for the Philippines, and even assuming he did so with no intent to flee the jurisdiction and the authorities had promptly secured his return as he claims they should have done, his trial almost certainly would have commenced after section 1108's effective date. It therefore still would have applied to his trial.
Second, the purpose of the speedy trial protection is to guard against prejudice that may arise from willful or negligent official conduct, including the loss of evidence or faded memories. (Jones, supra, 3 Cal.3d at p. 738.) But nothing suggests, and Haynes cites no authority, that it applies to changes in the law or trial procedure.
Third, Haynes's claim also fails because his prior offenses would have been admissible even if he had been tried in 1995 before section 1108's enactment. Evidence of prior "bad acts" was and remains admissible under section 1101, subdivision (b), to show the perpetrator's intent. The charged offense and other conduct offered to support the charge must be "sufficiently similar to support a rational inference" of the asserted material fact, including intent. (People v. Kipp (1998) 18 Cal.4th 349, 369.) But the "least degree" of similarity is required to show intent (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt)); that is, similar enough to support the inference the defendant probably harbored the same intent on each occasion. (People v. Memro (1995) 11 Cal.4th 786, 864-865.) The crimes here met that low threshold to show Haynes's sexual intent in his child victims. All were roughly the same age, Haynes gained access to them by befriending their parents, and in each case used photography to induce the child to participate in a sexual encounter. Haynes's claim of prejudice in the general admissibility of section 1108 evidence has no merit.
Finally, Haynes's claim that he was prejudiced by the destruction of phone records to contest Mary's claims he called her and made inculpatory statements in those calls is again only speculative. This is particularly true where Barnes's testimony concerning similar calls corroborated Mary's account. Because Haynes failed to meet his burden to show any actual prejudice he suffered in the loss of evidence or any other manner from the pretrial delay, his speedy trial and due process claims fail. B. Prior Sex Crimes Evidence
As an alternate tack to his speedy trial claim of prejudice, Haynes also asserts the trial court's decision to admit the prior sex crimes evidence was erroneous under the standards governing section 1108 evidence. Section 1108 provides for the admission of propensity evidence in sex offense cases, where it is more probative than prejudicial in determining the defendant's guilt on the charged offenses. (§ 1108, subd. (a); People v. Soto (1998) 64 Cal.App.4th 966, 991-992 (Soto) [probative evidence of other sexual crimes was "exactly the type of evidence contemplated by the enactment of section 1108"].) The evidence must pass muster under section 352.
Under section 352, the trial court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
In People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta), the Supreme Court described the "careful weighing process" applicable to prior sex crimes 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." (Falsetta, supra, at p. 917.)
Courts have upheld the constitutionality of section 1108 based on the essential safeguard section 352 provides against a fundamentally unfair trial. (See, e.g., Falsetta, supra, 21 Cal.4th at p. 922.) An erroneous ruling under section 352 therefore could have constitutional implications, as Haynes claims here. We review the court's ruling under section 352 for abuse of discretion (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch)), and find none.
Haynes argues the prior offenses were more prejudicial than probative because they were remote at the time of the charged incident, and even more remote by the time of trial nearly 20 years later. He also now claims certain details in Elizabeth's testimony were particularly inflammatory and made it unfair to couple such "a far more serious offense [with] the instant one, which merely involved an act of indecent exposure."
The trial court did not err. Contrary to his characterization on appeal, Haynes was not charged with "mere" indecent exposure. His prior offenses were relevant because to prove child molestation (Pen. Code, § 647.6), the prosecution was required to show he was "'"motivated by an unnatural or abnormal sexual interest"' in the victim." (People v. Lopez (1998) 19 Cal.4th 282, 289.) Although the prior offenses occurred over 30 years before trial, the trial court aptly observed that the relevant period "is measured at the time of the offense . . . instead of the time of trial" because the jury is "not trying to decide does he have the propensity to do this today." Here, the record shows that within three years of molesting Elizabeth and while he was still on probation for that offense, he molested Shannon in 1983 and received a six year prison term. He did not reform and instead within a few years of his release continued to demonstrate his sexual interest in children by exposing himself to E.B. in 1995.
The Legislature specifically based section 1108 on findings that "persons who commit sex offenses often have a propensity to commit sex crimes against more than one victim." (People v. Escudero (2010) 183 Cal.App.4th 302, 305-306.) Given the repeat nature of Haynes's sexual conduct with children, his prior offenses were not too remote, but instead demonstrated the probative value of sex crimes under which they may be admissible even decades later. (Branch, supra, 91 Cal.App.4th 274, 284-285 [evidence admitted despite "30-year gap" between prior act and charged offense]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; Soto, supra, 64 Cal.App.4th at pp. 977-978, 991-992 [admitting evidence of 20- to 30-year-old acts].)
As discussed, Haynes complained that with the passage of time, no police reports were available to impeach the witnesses if they strayed from earlier accounts they may have given. But as the trial court noted, it was only speculative that any police reports would be helpful in that regard. Haynes did not suggest he earlier had reviewed them and found anything exonerating or helpful at the time he was charged with those offenses. Instead, he pleaded guilty to those incidents. It follows that he had a first-hand perspective on the testimony of those witnesses at this trial, but if there were likely sources to dispute their accounts, he did not object or proffer them. The jury knew of his convictions, so he was not at risk the jury would punish him for those crimes "regardless whether it considered him guilty of the charged offense[]." (Ewoldt, supra, 7 Cal.4th at p. 405; People v. Jandres (2014) 226 Cal.App.4th 340, 355.) There is no merit in Haynes's challenge based on remoteness.
The same is true for his claim that Elizabeth's testimony concerning his prior offense was unduly prejudicial. He argues that Elizabeth's testimony implied he raped her and threatened to harm her younger sister if she told anyone about what he had done, elevating his prior offense to something much more serious than the charged offense, and therefore inherently prejudicial. But the trial court could not anticipate the particulars of the witnesses' testimony at the time of its pretrial section 1108 ruling. The court only knew that the prior offense involved the touching necessary for a conviction under Penal Code section 288, subdivision (a). As the trial court later instructed the jury, an offense under that section requires lewd touching "either on the bare skin or through clothing."
We review the correctness of the trial court's ruling at the time it was made, not by reference to evidence produced at a later date. (People v. Jenkins (2000) 22 Cal.4th 900, 1007, fn. 23; People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hendrix (2013) 214 Cal.App.4th 216, 243.) Haynes's record citations reflect that at the pretrial hearing in which the trial court denied his motion to exclude evidence of his prior sexual conduct with children, counsel acknowledged, "[W]e don't know what the 288 conduct was underlying the offense[s] from 1981 or 1983." In these circumstances, we cannot say the trial court erred. Haynes did not renew his objection at trial, nor asked the trial court to preclude Elizabeth from stating certain details or move to strike or admonish the jury. His challenge on appeal is therefore forfeited. (§ 353.)
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.