Filed 5/29/14 P. v. Cuevas CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C067437

                   Plaintiff and Respondent,                                   (Super. Ct. No. MF031966B)

         v.

GERARDO CUEVAS III,

                   Defendant and Appellant.




         Defendant Gerardo Cuevas III contends the trial court erred in his trial on various
sex offenses with a minor when it admitted evidence of prior uncharged crimes under
Evidence Code section 1108, and when it instructed the jury with CALCRIM No. 318 on
the use of a witness’s pretrial statements. He also claims the court miscalculated his
presentence custody credits. We disagree with his contentions and, except to order a
correction to the abstract of judgment be filed noting the correct number of custody
credits, we affirm the judgment.



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                                         FACTS
       33-year-old Robert Wolfe, a friend of defendant’s, was regularly having sex with
13-year-old Jane Doe. Wolfe introduced Doe to defendant. Defendant was
approximately 32 years old when he met Doe. Doe testified to seven sexual encounters
with defendant.
       The first encounter occurred at defendant’s apartment. Wolfe directed Doe into
defendant’s bedroom and told her to disrobe. Both men lay on the bed wearing only their
shirts. Doe had intercourse with Wolfe while defendant lay next to them. After Wolfe
finished and left the room, defendant had intercourse with Doe from behind. Then Wolfe
reentered the room and orally copulated defendant. Doe had not wanted to have sex with
defendant; she did not care about him and only had sex with him to please Wolfe.
       The second encounter occurred a couple of months later in Wolfe’s apartment.
Defendant was there to smoke marijuana with Wolfe and Doe. Wolfe brought out
pornographic magazines and played pornography on his computer and television.
Defendant pushed Doe into the kitchen, pulled down her pants, and had intercourse with
her from behind. Wolfe pointed a digital camera at them, but Doe did not know if he was
actually taking pictures.
       The third encounter took place at defendant’s apartment. Wolfe, Doe, and
defendant were on defendant’s couch. Doe orally copulated Wolfe while defendant had
intercourse with Doe from behind. There was a video camera on a coffee table in the
room pointed at the three of them. Doe believed the camera was running because the
camera’s light was on. Doe went into the bathroom to clean herself. As she left the
bathroom, she saw defendant shredding the video tape from the video camera in a paper
shredder.
       The fourth encounter occurred when defendant was driving Doe home. Defendant
pulled into a parking lot. He wanted to have sex with her, but she did not. She orally
copulated him instead.

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       The fifth encounter occurred in defendant’s apartment. Wolfe and his wife had
moved into the apartment in December 2006, and Doe would spend the night there on
occasion. One night, defendant came home from work while on break. Doe was sleeping
on the couch. Defendant woke her and had sex with her. Doe said the incident “kind of
felt like rape. . . . I didn’t want it to happen and I was sleeping. It just didn’t feel right to
me.” Doe did not do anything to stop defendant because she was afraid of saying no.
       The sixth encounter occurred on another night when Doe was staying at
defendant’s apartment with Wolfe and his wife. Doe went into defendant’s bedroom to
ask him for some headache medicine. Defendant awoke and forced her into his
bathroom. He pushed her face first against the wall. He pulled her pants down a little
bit. She felt his penis against her. She was able to get away, and she ran out of the
bathroom.
       The seventh incident took place at a house to which defendant had moved. Wolfe
took Doe to the house. They went into defendant’s bedroom, and both Wolfe and
defendant had intercourse with her.
       Doe testified she was high on drugs every time she had sex with Wolfe and
defendant.1
       Pursuant to Evidence Code section 1108, the prosecution presented evidence of
defendant’s prior sexual relationships with two teenage girls. G.C. was 14 years old and
defendant was 17 years old when they met. They began dating when she was 15. At 16,
she became pregnant with defendant’s child. The child was born in 1994.
       M.R. met defendant when she was 15 years old, and he was 21 years old. At 16,
she became pregnant with defendant’s child. The child was born in 1997.




1      Wolfe pleaded guilty to molestation charges. He testified for the prosecution.

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                                PROCEDURAL HISTORY
       The trial court declared a mistrial in defendant’s first trial, as the jury was unable
to reach a verdict. In the second trial, the jury convicted defendant of three counts of
committing lewd and lascivious acts on a child under the age of 14 years (Pen. Code, §
288, subd. (a)), and found true the allegations that defendant engaged in substantial
sexual conduct with a child under the age of 14. (Pen. Code, § 1203.066, subd. (a)(8).) It
acquitted defendant of an additional count of lewd and lascivious acts on a child and a
count of using a minor under the age of 14 to perform an obscene act. (Pen. Code, §
311.4, subd. (c).)
       The trial court sentenced defendant to a state prison term of 12 years, calculated as
follows: the upper term of eight years on one of the lewd conduct counts, plus
consecutive two years for each of the remaining lewd conduct counts.
                                       DISCUSSION
                                              I
                         Evidence of Prior Uncharged Sex Crimes
       In defendant’s first trial, the prosecution by in limine motion sought to introduce
evidence of defendant’s prior sexual relationships with two underage girls, G.C. and
M.R. Defense counsel opposed the motion, arguing the evidence would confuse the
issues and was too dissimilar to the facts in the current case. The trial court ruled the
evidence was admissible under Evidence Code section 1108 (section 1108), finding its
probative value outweighed its prejudicial effect.
       During defendant’s retrial, the prosecution again sought to introduce the section
1108 evidence. Defense counsel did not object. He stated that because the evidence was
admitted in the first trial, he did not see a reason why the evidence would not be admitted
in the retrial. The court admitted the evidence.




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       Defendant contends the court erred by admitting the evidence. He argues the
prejudicial effect of the evidence outweighed its probative value because the uncharged
conduct was too dissimilar and remote to be probative of his propensity to commit the
charged offenses. He also asserts section 1108 is unconstitutional. We disagree with his
contentions.
       Initially, we discuss forfeiture, an issue neither side raised. Defendant did not
object to introduction of the section 1108 evidence at his second trial, following mistrial
in his first trial. This omission of an objection forfeits his claim here. As with a new
trial, when a mistrial is called, according to long-held precedent, the parties are placed in
the same position as if the first trial had never occurred. (See Pen. Code, § 1180.) “A
mistrial is equivalent to no trial.” (In re Alpine (1928) 203 Cal. 731, 743, disapproved on
another ground in Sykes v. Superior Court (1973) 9 Cal.3d 83, 90, fn. 7.) It was thus
incumbent on defendant to object to the admission of the section 1108 evidence, even
though it had been admitted in the first trial, if he intended to challenge the admission on
appeal. His failure to do so forfeits his claim here.
       Even if defendant had objected at trial, we still would find the court did not err by
admitting the evidence. Under section 1108, a court in a criminal sex offense trial may
admit evidence of other uncharged sex offenses committed by defendant if the evidence
is not unduly prejudicial under Evidence Code section 352. (§ 1108, subd. (a).)
       “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 [Evidence
Code] 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

                                              5
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.]”
(People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
       We review a trial court’s ruling under section 1108 for abuse of discretion.
(People v. Loy (2011) 52 Cal.4th 46, 61.)
       We find no abuse of discretion here. Defendant’s prior offenses were sufficiently
similar to the charged offenses. The uncharged offenses need not be identical to the
charged offenses in order to be admissible. “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, 41, fn. omitted, disapproved on another ground in People v. Loy, supra,
52 Cal.4th at pp. 73-74.) Defendant’s charged and uncharged offenses are defined in
section 1108 as sex offenses that trigger the statute’s provisions. (§ 1108, subd. (d).)
And the acts were in fact similar. In both the charged and uncharged offenses, defendant
engaged in consensual sexual intercourse with minors as an adult, and did so regardless
of his age.
       Defendant’s prior offenses were not remote from the charged offenses. “No
specific time limits have been established for determining when an uncharged offense is
so remote as to be inadmissible. . . . [¶] Remoteness of prior offenses relates to ‘the
question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory,
a substantial gap between the prior offenses and the charged offenses means that it is less
likely that the defendant had the propensity to commit the charged offenses. However,
. . . significant similarities between the prior and the charged offenses may ‘balance[] out
the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in
nature to the charged offenses, the prior offenses have greater probative value in proving
propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th
274, 284-285.)



                                              6
       The similarity between defendant’s charged and uncharged offenses outweighs
any remoteness between the two sets of acts. Despite the passage of 10 and 13 years
since his sexual relations with G.C. and M.R., defendant again engaged in sexual
intercourse with a minor. In addition, the gap of 10 and 13 years is less remote than gaps
of time in other cases that were found not to be remote. (See, e.g., People v. Frazier,
supra, 89 Cal.App.4th at p. 41 [15- or 16-year gap]; People v. Soto (1998) 64
Cal.App.4th 966, 977, 991-992 [more than a 20-year gap].)
       Moreover, the uncharged crimes evidence was probative. The evidence bolstered
Doe’s testimony and credibility from independent and unrelated sources by showing
defendant’s propensity to engage in sex with minors. Receiving the evidence did not
unduly consume the court’s time. And the evidence was not inflammatory in light of the
charged crimes.
       Had the trial court been given the opportunity in the second trial to weigh the
evidence’s probative value against its prejudicial effect, we have no doubt it would have
relied upon these and other factors and found the evidence admissible under section 1108.
       Defendant contends section 1108 is unconstitutional. Our Supreme Court has
rejected his argument. (People v. Falsetta, supra, 21 Cal.4th at p. 915.) We are bound
by this ruling (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and
thus will not address defendant’s contention.
                                              II
                          Constitutionality of CALCRIM No. 318
       The trial court instructed the jury with CALCRIM No. 318, which addresses
pretrial statements made by a witness. The instruction states that if the jury hears
evidence of statements a witness made before trial, and if it determines the witness in fact
made the pretrial statements, it may use the statements in two ways: (1) to evaluate
whether the witness’s testimony in court is believable; and (2) as evidence that the
information in the pretrial statements is true.

                                              7
       A court may use this instruction when a testifying witness has been confronted
with a prior inconsistent statement. “CALCRIM No. 318 informed the jury that it could
consider discrepancies between out-of-court statements and in-court testimony to decide
that a witness's statements on the stand were not trustworthy.” (People v. Tuggles (2009)
179 Cal.App.4th 339, 365.)
       Defendant contends the instruction violates his due process rights because it
informed the jury Doe’s pretrial statements were more likely to be true simply because
she made them. We rejected this argument in People v. Hudson (2009) 175 Cal.App.4th
1025, and our reasoning in that case still applies. “CALCRIM No. 318 informs the jury
that it may reject in-court testimony if it determines inconsistent out-of-court statements
to be true. By stating that the jury ‘may’ use the out-of-court statements, the instruction
does not require the jury to credit the earlier statements even while allowing it to do so.
[Citation.] Thus, we reject defendant's argument that CALCRIM No. 318 lessens the
prosecution's standard of proof by compelling the jury to accept the out-of-court
statements as true.” (People v. Hudson, supra, at p. 1028.)
       Defendant acknowledges the jury also received other instructions that would apply
to the jury’s understanding and application of CALCRIM No. 318, but he claims the jury
would not have “balanced instructions against each other to try to counteract the
unambiguous language” of CALCRIM No. 318. We disagree with this contention.
“[T]he ‘ “correctness of jury instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a particular
instruction.” ’ [Citations.]” (People v. Hudson, supra, 175 Cal.App.4th at pp. 1028-
1029.) And we presume the jury was able to follow all of the court’s instructions.
(People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190.)
       The trial court provided other instructions which, when followed by the jury,
ensured the jury applied CALCRIM No. 318 correctly. The court instructed the jury with
CALCRIM No. 226, which instructed the jury it had to determine the credibility of each

                                              8
witness, and that it could accept or reject any testimony. The instruction told the jury that
in making that determination, it could consider, among other matters, prior inconsistent
statements. Thus the jury knew it had to determine the credibility of all statements made
by a witness, including the witness’s out-of-court statements. The court also instructed
the jury with CALCRIM No. 220, which explained the prosecution’s burden to prove
defendant guilty beyond a reasonable doubt. As we said in People v. Hudson, supra,
“[r]ead as a whole, the instructions did not lessen the prosecution’s burden of proof by
elevating out-of-court statements to unquestionable reliability.” (175 Cal.App.4th at p.
1029.) CALCRIM No. 318 did not violate defendant’s constitutional rights.2
                                              III
                                Presentence Custody Credits
       The trial court determined defendant earned a total of 64 days of presentence
custody credit. The abstract of judgment, however, states the court awarded 81 days of
credit. Defendant asserts the court erred, and that he actually earned 65 days. The
Attorney General argues the court correctly provided 64 days of credit, and the abstract
should be corrected to state the correct amount. We agree with the Attorney General.
       The one-day difference arises from information contained in the probation report.
The report states defendant was arrested on January 9, 2009, but it also states his custody
in the San Joaquin County Jail began January 10, 2009. Defendant argues he should be
given one day of credit to account for the day he was arrested. Custody credits are given
for days a prisoner is “confined” in a county jail or city jail, from the date of arrest to the
commencement of sentence. (Pen. Code, § 4019.) Although defendant was arrested on



2      The Attorney General asserts defendant forfeited his challenge to CALCRIM No.
318 because he did not seek amplification or clarification of the instruction. We disagree.
A defendant need not object to preserve a challenge to an instruction he claims
incorrectly states the law to the detriment of his substantial rights. (People v. Tuggles,
supra, 179 Cal.App.4th at p. 364.)

                                               9
January 9, there is no evidence he was confined in a county jail or city jail until the
following day. The trial court thus correctly determined defendant was entitled to 64
days of credit, and we order the court clerk to prepare an corrected abstract recording the
correct amount.
                                       DISPOSITION
       The clerk of the trial court is ordered to prepare a corrected abstract of judgment
awarding defendant a total of 64 days of presentence custody credit, and to forward it to
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.



                                                         NICHOLSON             , J.



We concur:



      RAYE                   , P. J.



      DUARTE                 , J.




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