Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064335
RUVOLO, P.J.
Appellant was convicted of sexually molesting two young girls. Evidence that he had molested two other girls in the past was admitted to show propensity. Appellant argues that the trial court abused its discretion and violated his constitutional rights by denying his trial counsel’s request for a brief continuance in order to obtain the testimony of a character witness who also could have provided appellant with a partial alibi. Appellant also contends that the propensity evidence should have been excluded as more prejudicial than probative, and that its admission violated his constitutional right to due process. We reject both of these contentions, and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Appellant was born in Tonga, and came to the United States in 1996. As of April 2008, when this case went to trial, appellant was 66 years old.
Around 1988, while appellant was still living in Tonga, a 13-year-old girl named B., who was a distant relative of appellant’s and had known him for a long time, came to stay at his house to visit his daughter M. According to B., while she was asleep at appellant’s house, at about 3:00 a.m., she was awakened by a button on her shirt hitting her chin. She saw appellant standing in front of her, shirtless, and then felt a hand reaching onto the skin in the area of her chest. She screamed, and appellant left the room before anyone responded. B. terminated her visit early and left appellant’s house, never to return. She did not tell anyone about this incident at the time, because she was scared and did not think anyone in the family would believe her. She told her mother about it some six years later. She also told her sister, although the record does not reveal when.
To protect the privacy of the complaining witnesses and their family members, some of whom have first names that are not common in the United States, we will refer to them by the initial letters of their first names.
B.’s mother, who was also A. and S.’s maternal grandmother, died in February 2007, prior to the trial in this case.
About nine years after this incident, in 1997, B.’s sister died. In 1998, appellant’s daughter M. married the man who had been B.’s late sister’s husband. B.’s late sister and her husband had two daughters: A., who was born in late 1982, and S., who was born in early 1994. In 1999 or 2000, when A. was 18 and S. was not quite 6 years old, appellant moved in with his daughter M., her husband, and appellant’s step-granddaughters. B. told A. and S.’s father to be careful with A. and S. around appellant, although she did not explain specifically why. Appellant’s daughter M. and her husband severed their ties with B.’s family, however, so B. was not allowed to see her nieces, appellant’s step-granddaughters, while appellant was living with them.
In the information, S. was referred to as Jane Doe #1, and A. was referred to as Jane Doe #2. We will refer to A. and S. collectively as appellant’s step-granddaughters.
Appellant testified at one point that he did not move into this house until August 2001, but then said that he moved there in 1999, left in October 1999 for work reasons, and then moved back in again in August 2001.
According to A., during her senior year of high school, while appellant was living with her and her family, he repeatedly tried to touch her inappropriately on her breasts, vagina, and posterior, and succeeded in doing so at least five times. A. was fully clothed on these occasions, and appellant only touched her over her clothing. He also said things of a sexual nature to her in Tongan, such as remarks about the size of her breasts. A. told appellant’s wife and M., as well as two older female cousins, about the problem, but even though they sometimes saw appellant touching A., they did nothing. As a result, A. began spending as little time as possible at home, and often stayed overnight with relatives.
According to S., one night close to the date of S.’s sixth birthday (i.e., in early 2000), about a couple of months after appellant moved in with S.’s family, S. woke up during the night to find that she was no longer wearing the pajamas in which she had gone to bed, and appellant was standing over her. She saw appellant’s hands on her body, and felt him putting his fingers into her vagina and touching her breast area with his other hand. When appellant heard someone coming toward S.’s bedroom, appellant ran out, telling S. not to tell anyone. S. was frightened that appellant might harm her if she told anyone, so she did not.
S.’s recollection was that appellant continued to touch her inappropriately on a frequent basis during this period, but she did not remember how many times, and she did not have many specific memories of particular incidents. She did remember one occasion when she was lying on her back in the living room, and turned over to lie on her stomach when she saw appellant coming. He told her to turn over so he could reach into her pants, and she refused. Appellant then tried unsuccessfully to force his hand into her pants, but he stopped when S.’s uncle, who also lived in the house, called out from another room. S. also recalled that appellant tried to put his hands into her pants on another occasion while she was playing with a cousin. He also forced S. to put her hand on his erect penis a couple of times; frequently touched her in the area of her vagina and breasts in the kitchen when she came home from school; and licked her vagina once or twice.
A. testified that appellant got home from work at around the same time that S. got home from school, which was about 2:00 or 3:00 p.m.
During an interview with one of the police officers who conducted the investigation into the charges against appellant, S. did not assert that he had licked her vagina, as she testified at trial. She did report that appellant had put her hand on his penis, but said it had happened two or three times rather than only once or twice.
In 2004, S. went to New Zealand for nine months at the invitation of her father’s family, because she wanted to get away from appellant. After she returned to the United States, appellant still lived in the same house with her, but he did not repeat his behavior.
In March 2005, a girl named N., who was born in late 1994 and lived in a neighboring state, stayed with her family for a week at a house where appellant was living. N. was not a member of appellant’s family, and she had never met him before, but her mother knew his family through a friend. N. met appellant and S. for the first time during this visit. N. had seen S. twice since then, and they had discussed what happened to her during the visit, but N. was not close to S. and had never spoken to her on the telephone. N. did not know B. or A. at all.
N. was referred to in the information as Jane Doe #3. N. is not the actual initial of her first name, but we will use it to refer to her because her first name begins with the same letter as that of another person whose name we have abbreviated. The home appellant was living in at the time N. visited him was a different one than the one in which he lived with A. and S.
N. recalled two encounters with appellant, both of which occurred in the kitchen during the daytime. On the first occasion, appellant called N. over to him, and when she got close to him, he touched her on her vagina under her clothes. N. was frightened by this, and ran upstairs and told her older sister, her cousin, and S. what had happened. N.’s sister and S. told her not to be anywhere in the house alone.
A few days later, N. was outside with her brother, and when they came inside, her brother ran upstairs, leaving her alone with appellant in the kitchen. Before N. could follow her brother upstairs, appellant asked her to get him a glass of water. When she brought it to him, he grabbed her arms, told her to stand still, and touched her on her legs and thighs underneath her shorts.
N. did not tell her parents about these incidents, because she did not want to make them angry. It was S. who later told the police that appellant had also molested N. When interviewed by the police two years later, in April 2007, N. was initially reluctant, but ultimately cooperative. At that time, she did not state that appellant had put his hand in her pants or touched her vagina. Rather, she stated that he had stroked her arm and ribcage, and pulled her pants and underwear down to the bottom of her hip, but without making contact with the skin underneath her pants. When shown a photo array that included appellant, N. pointed to appellant’s picture and started to cry.
In March 2007, A. saw scars on S.’s arm, and noticed that S. was frequently upset and angry with her, so she asked S. if there was something wrong with her. The scars were there because S. had been cutting herself with knives and other sharp objects. They were visible at the time of trial, but the police did not look for or notice them during the investigation, because they had not been made aware of S.’s cutting behavior.
After asking S. whether anything was wrong, A. asked her specifically whether anyone had done anything bad to her, and whether appellant had touched her inappropriately. At first, S. repeatedly said no, because she was afraid that she would get in trouble, or that appellant might do something to her. A. pressed her, however, and assured her that she would not be angry and would not tell anyone. Finally, S. told A. that appellant had done something, and when A. asked, confirmed that appellant had touched her in the area of her vagina. After S. told A. about appellant’s molestation of her, S. stopped cutting herself.
As soon as S. told A. what had happened, A. got in touch with B., her aunt, and told her that there was a problem between S. and appellant. This brought back B.’s memory of the incident between her and appellant in Tonga some 20 years earlier, which she had never forgotten. B. then brought S. and A. to the police station, where they reported appellant’s behavior. From then on, S. lived with B.
After B., S., and A. reported appellant to the police, he was arrested and charged by information with 24 felony counts, consisting of: (1) one count of digital penetration of S., a child under 14 years old, which was alleged to constitute substantial sexual conduct by a perpetrator more than 10 years older than the victim (Pen. Code, §§ 289, subd. (j); 1203.066, subd. (a)(8)); (2) 14 counts of lewd conduct involving S. (§§ 288, subd. (a)); (3) two additional counts of lewd conduct involving S. that were alleged to constitute substantial sexual conduct with a victim under the age of 14 (§§ 288, subd. (a); 1203.066, subd. (a)(8)); (4) five counts of unlawfully touching A. while she was restrained (§ 243.4, subd. (a)); and (5) two counts of lewd conduct involving N., a child under 14 years old (§ 288, subd. (a)). The information also alleged that appellant’s crimes involved multiple victims within the meaning of sections 667.61, subdivisions (c) and (e)(5), and 1203.066, subdivision (a)(7).
At appellant’s trial, the parties stipulated that he was more than 10 years older than S. and N.
All further statutory references are to the Penal Code unless otherwise noted.
The presentation of evidence at appellant’s trial began on April 9, 2008. On April 11, 2008, the prosecution moved to dismiss all of the counts involving A. due to insufficient evidence, because the statute under which appellant was charged in her case requires skin-to-skin contact, and A.’s testimony indicated that she was always clothed when appellant touched her. Nonetheless, at the prosecution’s request, A.’s testimony regarding appellant’s molestation of her was not stricken from the record; instead, the jury was instructed to consider it solely as propensity evidence under Evidence Code section 1108 (section 1108).
In addition to the testimony of B., A., S., and N. regarding appellant’s behavior toward them, the prosecution also introduced expert testimony regarding child sexual abuse accommodation syndrome, as a “framework” for understanding the behavior typical of child molestation victims. Miriam Wolf, a licensed clinical social worker, testified that symptoms of this syndrome, which many adults find counter-intuitive, include secrecy; psychological helplessness; accommodation by means of acting out, including self-harm (such as cutting) and early sexual activity; delayed, hesitant, and/or unconvincing disclosure; and retraction or recantation. Wolf explained that these behaviors can occur even years after the abuse has stopped, especially when children who were abused at a very early age reach adolescence. Wolf did not offer any opinion as to whether the complaining witnesses in the present case had actually been molested. She acknowledged that the theories about the syndrome are based on clinical observations rather than on research, and that the symptoms of child sexual abuse accommodation syndrome can also be caused by other problems, so that their presence does not constitute a “litmus test” for determining whether a child has actually been a victim of sexual abuse.
As with A.’s testimony, B.’s testimony was admitted only to show propensity under section 1108, and the jury was so instructed.
The prosecution also introduced evidence regarding its investigation into the charges. Diana Emerson, a nurse practitioner, testified as an expert in forensic child sexual abuse examinations. She examined S. in March 2008. During Emerson’s interview with her, S. told Emerson that she had been sexually active since age 12. As a result, it was not possible for Emerson’s physical examination of S. to reveal any evidence substantiating her accusations against appellant. Alan Corpuz and Jaime Romero, the police officers who interviewed the complaining witnesses, both testified that they did not share any of the witnesses’ statements with the other witnesses. Romero also testified that A. expressed repulsion toward appellant when he showed A. a photo lineup during her interview.
Appellant testified in his defense. He denied committing any of the acts described by B., S., A., and N. He also testified that during the time he was living in the same house with S. and A., he was away from 8:00 a.m. until 6:00 p.m. doing carpentry, landscaping, and yard work. He denied being in the kitchen in either of his houses except during dinner and when helping his wife clean up afterwards, and contended that he did not “hang out” there in the way that A. and N. had described. He admitted, however, that he sometimes got home from work as early as shortly after 5:00 p.m.
Appellant attempted to suggest that B., A., and S. had a motive to fabricate their allegations against him. Specifically, appellant’s counsel’s cross-examination of S. and A. implied that the motive was related to an issue in the family about the loss of a house to foreclosure, for which appellant believed the family blamed him. S. acknowledged that she was aware of the issue in the family over the house foreclosure, but denied that appellant had been blamed for it, and averred that the issue did not matter to her. A. testified that the issue long predated her discovery of her sister’s molestation, and that the two controversies had nothing to do with each other. B. testified that the foreclosure had occurred months before she removed S. from the family home, and that the foreclosure had nothing to do with her trial testimony.
Appellant did not present any other witnesses in his defense case. His trial counsel requested a brief continuance in order to permit him to present a witness whom counsel had been unable to reach. As discussed in more detail post, the trial court denied the continuance.
On April 15, 2008, the jury found appellant guilty of all of the charges that remained pending, and found true the allegations of substantial sexual conduct and multiple victims. On September 2, 2008, the trial judge denied appellant’s request for probation, and sentenced him to prison for a total of 51 years to life.
This timely appeal followed. During the pendency of this appeal, appellant filed a petition for habeas corpus on the ground of ineffective assistance of counsel. (In re Sione M. Mahe, No. A124545, petn. pending.) On April 13, 2009, we ordered that the petition would be considered together with the direct appeal, and set a briefing schedule.
DISCUSSION
A. Denial of Continuance to Produce Witness
On April 14, 2008, which was a Monday, the prosecution rested toward the end of the morning, and the court declared a recess for lunch. When court reconvened after the recess, appellant’s trial counsel told the court, outside the presence of the jury, that he had not been able to contact two witnesses whom he had hoped to examine that day. He explained that he had only just found out that morning that he had been using an incorrect telephone number for one of them. He had obtained a corrected telephone number, and had left a message, but he had not heard back. He therefore requested that testimony be allowed to continue the following morning.
The prosecutor responded that her understanding, from “the offer of proof and the previous discovery turned over by the defense,” was that the witness whom appellant’s counsel had been unable to reach “was simply a character witness,” and that he “certainly [was not] any kind of alibi witness for any of the offenses.” She therefore opposed the continuance.
The trial judge noted that as of the preceding Friday, the court and the parties had been aware that the prosecution’s case would conclude by the late morning on Monday. The judge indicated that he had given appellant’s trial counsel until 1:30 p.m. to produce the witness, but stated that since the witness was not a percipient witness, he would deny the continuance. Appellant’s counsel asked the court to permit him to lodge a document regarding the witness as a nonjury exhibit, and the request was granted.
Despite this ruling, the document does not appear in the trial court record. Appellant’s counsel has attached as an exhibit to his pending petition for habeas corpus a report from trial counsel’s investigator of his interview with the witness, Pastor Likio. Trial counsel’s declaration, which is also an exhibit to the petition, indicates that this document was provided to the prosecutor in discovery, and we infer that it was the same document that the trial court ruled could be made a part of the record. We have therefore considered its contents, for the purpose of this appeal, as an offer of proof regarding the substance of Pastor Likio’s proposed testimony. We will refer to the witness as Pastor Likio, and the document as the Likio statement.
During this colloquy, appellant’s trial counsel did not contradict the prosecutor’s or the trial court’s characterization of Pastor Likio as a character witness rather than an alibi or percipient witness. When appellant testified, however, he stated in response to a question from the prosecutor that “the pastor that is supposed to come” could verify that he was out of the house working from 8:00 a.m. to 6:00 p.m. Monday through Friday every week during the time that A. and S. had testified appellant molested them.
After the jury instructions were given, appellant’s counsel renewed his motion to continue until the following day so that he could try again to produce Pastor Likio. The prosecutor again objected. The trial judge noted that the April 1, 2008 trial date had been set since January 11, 2008, and that there had been plenty of time to subpoena witnesses. Appellant’s trial counsel explained that Pastor Likio had been subpoenaed, but that he had been using the wrong telephone number to try to reach him, and had not realized it until that morning. Reasoning that “the witness could only testify to [appellant’s] character and maybe confirm when he was working for him,” but was “not a percipient witness as to the event[s] involving any of the four victims who testified at the trial,” the trial court denied the motion.
Appellant now contends that the trial court violated his right to due process in denying his request for a continuance. We review a trial court’s ruling denying a continuance for abuse of discretion. (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
In order to obtain a continuance to secure the attendance of a witness in a criminal case, the defendant must establish: (1) the exercise of due diligence in attempting to bring the witness to court; (2) the ability to obtain the witness’s testimony within a reasonable time; (3) the unavailability of other evidence establishing the facts to which the witness is expected to testify; and—most significantly for our purposes—(4) the materiality of the witness’s testimony. (People v. Howard (1992) 1 Cal.4th 1132, 1171.)
Appellant’s request at least arguably met the first three of these criteria, while his assertion that Pastor Likio’s testimony was material is unconvincing. First, appellant’s briefs attempt to inflate the materiality of Pastor Likio’s proposed testimony by casting him as an alibi witness. We decline to accept this characterization. Nothing in the Likio statement makes any reference, even in general terms, to appellant’s work hours or his whereabouts during the afternoon on weekdays, when S. testified most of the abuse occurred. The only indication in the record that Pastor Likio could have corroborated appellant’s alibi is appellant’s own testimony to that effect, which he made for the first time after he already knew that Pastor Likio was not going to testify, and therefore could not be contradicted.
Moreover, even if we credit appellant’s assertion that Pastor Likio would have verified his work hours, it is highly unlikely that Pastor Likio would have been in a position to verify that working until 6:00 p.m. was appellant’s invariable practice during the entire period of S.’s molestations, which started in early 2000 and ended sometime in 2004. Indeed, appellant’s own testimony was that he sometimes got off work early and arrived home shortly after 5:00 p.m.
Accordingly, in reviewing the trial court’s denial of a continuance, we accept the trial court’s finding that Pastor Likio was solely a character witness. Even assuming that Pastor Likio’s character testimony would have been admissible—an issue we need not and do not reach (but see People v. McAlpin (1991) 53 Cal.3d 1289, 1305-1306, 1309 [defendant charged with child molesting may introduce lay character evidence regarding lack of sexual deviance])—appellant has not cited any case holding that a trial court abused its discretion in denying a defense motion for continuance in order to produce a witness whose testimony related solely to the defendant’s character.
In any event, we agree with respondent that appellant has not demonstrated that permitting him to introduce Pastor Likio’s testimony would have been likely to result in a more favorable verdict. Appellant characterizes the prosecution’s case as weak, but our reading of the record belies this view. None of the four victims’ testimony about appellant’s abuse of them was materially impeached, and the similarities between their accounts provided some mutual corroboration. The ulterior motive about the house foreclosure that was suggested by appellant’s counsel’s cross-examination of B., A., and S. was not corroborated, even by appellant’s own testimony; even if it had been, there was no argument that it could have affected the testimony or motives of N., who barely knew appellant. Moreover, in light of the expert testimony regarding child abuse accommodation syndrome, S.’s testimony was significantly corroborated by her subsequent cutting behavior and the reported early onset of her sexual activity. Finally, the strength of the prosecution’s case is reflected in the fact that despite the number of counts charged, the jury took less than a full day of deliberations to arrive at a verdict. (Cf. People v. McAlpin, supra, 53 Cal.3d at pp. 1312-1313.)
In light of the strong evidence against appellant, we are not convinced that having Pastor Likio testify to the matters set forth in the Likio statement would have been reasonably likely to induce the jury to reach a different verdict. (See People v. McAlpin, supra, 53 Cal.3d at p. 1311 [erroneous exclusion of character testimony reviewed under harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836].) Accordingly, even if we had concluded that the trial court erred in denying appellant’s motion for continuance, any such error was harmless.
B. Admission of Propensity Evidence
1. Prejudicial Effect Versus Probative Value
Appellant contends that the evidence of his molestation of B., which was admitted under section 1108, was more prejudicial than probative. He therefore argues that it should have been excluded under Evidence Code section 352 (section 352). We review the trial court’s determination on this issue for abuse of discretion. (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta); People v. Cudjo (1993) 6 Cal.4th 585, 609.) A trial court abuses its discretion when its ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
The testimony of A. was also retained in evidence, even though the charges relating to her were dismissed, on the authority of section 1108. However, the argument by appellant discussed in this section is made only with respect to the testimony of B.
As a general rule, evidence of uncharged crimes is not admissible to prove propensity or disposition to commit similar acts. (Evid. Code, § 1101.) However, section 1108 creates an exception when the crimes charged are sexual offenses. Section 1108 allows evidence of disposition to commit sexual offenses and “the case law clearly shows that evidence that [a person] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses.” (Falsetta, supra, 21 Cal.4th at p. 915, italics omitted.) In fact, evidence of disposition to commit crime is normally “ ‘objectionable, not because it has no appreciable probative value, but because it has too much.’...” (1 Wigmore, Evidence (3d ed. 1940) § 194, pp. 646-647, as quoted in People v. Alcala (1984) 36 Cal.3d 604, 630-631, italics omitted, abrogated on other grounds by statute as noted in Falsetta, supra, 21 Cal.4th at p. 911.)
Although admissible, evidence to show disposition to commit sexual crimes is still subject to section 352 balancing before its admission. (§ 1108.) The trial court has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) An exercise of trial court discretion is only reviewable for abuse and “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Falsetta, supra, 21 Cal.4th 903, directs courts to engage in a careful weighing process under section 352 when admitting evidence of prior sex offenses under section 1108. “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, 21 Cal.4th at p. 917.)
“[T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses....” (Falsetta, supra, 21 Cal.4th at p. 917.) In the present case, there was considerable similarity between the offenses charged as to A., S., and N., and the prior acts described in the testimony of B. In all of the cases, appellant took advantage of the presence in the same home with him of a young girl who was a family member or friend of the family. His molestations all involved sexual touching, but without any attempt at actual intercourse. Both B. and S. testified that appellant entered their bedrooms at night and removed their pajamas.
Appellant argues that even if B.’s testimony was sufficiently probative to be admissible under section 1108, it should have been excluded under section 352, because its probative value was outweighed by its prejudicial nature. The factors to be considered in weighing the prejudicial effect of prior sex crimes evidence were outlined by the California Supreme Court in People v. Ewoldt (1994) 7 Cal.4th 380, 404-406 (Ewoldt), overruled by statute on other grounds, as stated in People v. Britt (2002) 104 Cal. App.4th 500, 505, and by the Third District in People v. Harris (1998) 60 Cal. App.4th 727 (Harris).
As explained in Harris, the Supreme Court in Ewoldt “deemed it important in evaluating prior uncharged acts pursuant to section 352, whether ‘[t]he testimony describing defendant’s uncharged acts... was no stronger and no more inflammatory than the testimony concerning the charged offenses.’ ” (Harris, supra, 60 Cal. App.4th at pp. 737-738, quoting Ewoldt, supra, 7 Cal.4th at p. 405.) In the present case, B.’s testimony does not qualify as more prejudicial than probative under this factor, given that it was, if anything, significantly less inflammatory than S.’s testimony.
B.’s testimony also does not fall within the ambit of two of the other factors indicating a high degree of prejudicial impact, as discussed in Ewoldt and Harris. B.’s testimony about her molestation by appellant did not consume an undue amount of time. The probability of distraction or confusion existed, because it is possible that the jury could have been influenced by the fact that appellant had never been punished for his treatment of B. On the other hand, it was not difficult to separate the charged offenses, which involved S. and N., from the uncharged offenses testified to by B. Moreover, due to the prosecution’s dismissal of the charges involving A. in mid-trial, the jury would have been presented with unpunished offenses even if B.’s testimony had been excluded.
The only factor militating in favor of excluding B.’s testimony was the remoteness in time of appellant’s acts against B., which occurred in 1988, relative to his abuse of A., S., and N., which began some 12 years later. A time lapse of about 12 years did not preclude the admission of evidence of uncharged acts in Ewoldt, supra, 7 Cal.4th at p. 405, or in People v. Ing (1967) 65 Cal.2d 603, 612. In the latter case, the marked similarity between the uncharged acts and the charged crimes was held to outweigh the fact that a significant number of years had elapsed between them. The same is true here.
In short, in light of all of the relevant factors, we are not persuaded that the trial court abused its discretion in admitting the testimony of B. regarding appellant’s uncharged acts of molestation against her.
2. Constitutionality of Section 1108
Appellant also contends that section 1108 is unconstitutional. A decade ago, however, the California Supreme Court rejected the very same argument and upheld the constitutionality of the statute. (Falsetta, supra, 21 Cal.4th at pp. 910-922.) Appellant also challenges the corresponding pattern jury instruction, CALCRIM No. 1191. His trial counsel did not object to it, but in any event, a substantively identical CALJIC instruction was approved by our high court in People v. Reliford (2003) 29 Cal.4th 1007, 1013 (Reliford). In People v. Schnabel (2007) 150 Cal. App.4th 83, 87, the court held that CALCRIM No. 1191 is “similar in all material respects” to the instruction upheld in Reliford, and therefore concluded that the holding in Reliford applies equally to CALCRIM No. 1191. We agree.
The Supreme Court’s holdings are binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant concedes as much, but explains that he raises the issues to preserve them for “further review,” presumably in response to a federal habeas corpus petition. The federal courts themselves, however, have rejected claims that admission of propensity evidence in sex offense cases is unconstitutional. (E.g., United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022.) In short, this argument is meritless.
DISPOSITION
Appellant’s pending petition for habeas corpus will be denied by separate order.
We concur: REARDON, J., RIVERA, J.