Filed 11/19/13 P. v. Sullivan CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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



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




THE PEOPLE,                                                                                  C069674

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F02474)

         v.

CORTEZ JOHN SULLIVAN,

                   Defendant and Appellant.




         A jury convicted defendant Cortez John Sullivan of lewd and lascivious conduct
upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The trial court
sentenced defendant to state prison for the upper term of eight years.
         Defendant appeals. He contends the trial court abused its discretion in admitting
evidence of a prior incident of molesting children and in allowing the prosecution to
reopen to present this evidence just prior to closing argument. We affirm the judgment.



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                                         FACTS
       On January 1, 2010, approximately 20 adults and 15 to 20 children attended a
party at the A. home. Ten-year-old R.A., who lived in the home, saw the five-year-old
victim, D.F., enter the upstairs master bedroom walk-in closet and defendant followed
her. The lights went out. R.A. heard defendant tell the victim to “come here” and the
victim ask, “What are you doing?” R.A. went downstairs and spoke with Jamie B., who
also lived in the home.
       Jamie B. went upstairs to retrieve some baby wipes for her daughter and saw the
victim in the master bedroom. The victim was looking towards the master bathroom,
biting her nail. The bathroom light was on. Jamie B. watched the victim walk towards
the bathroom, disappearing from Jamie B.’s view, and the light went out. After pausing
briefly, Jamie B. went into the master bedroom, turned the corner, and saw defendant and
the victim, both facing Jamie B. Defendant was standing over the victim who was
“jammed up” in front of him. Defendant’s hands were near the victim’s pants, by the
zipper and button area. Jamie B. yelled at defendant, “What the f--- are you doing?”
Defendant’s hands “flew up” and “he started rambling about something.” Jamie B. took
the victim to another room where others were present and Jamie B. told them what she
had seen. Defendant entered the room and denied it, accusing Jamie B. of lying.
Defendant explained that he had told the children to stay out of the bedroom. He also
told them to stop playing in the closet and to go watch television instead. Jamie B.
explained that there were no other children in the master bedroom when she walked in.
       Jamie B., Tanya A. (the mother of Jamie B.’s boyfriend), and the victim went
downstairs to another room and closed the door. Tanya A. asked the victim about the
incident. The victim explained that something had happened and that defendant had said
something to her. That same night, the victim told a deputy sheriff that defendant had
touched her private area.



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       At trial, the victim testified that a man (defendant) stood behind her and put his
hands in her pants, touching her private area and told her, “Someday I want to lick it.”
The victim stated that Jamie B. caught defendant. Two-and-a-half weeks after the
incident, an interviewer questioned the victim and a DVD of the interview was played for
the jury. The victim had given the same story as she related at trial.
       The defense called the following witnesses:
       An investigator testified about some discrepancies in the statements of prosecution
witness R.A.
       Robert Crawford, who had known defendant for more than 10 years, was upstairs
during the party shooting pool with defendant. Crawford claimed that defendant never
went into the bedroom. Crawford admitted that he had been convicted of crimes of moral
turpitude.
       Tanya A., who had been good friends with defendant’s mother, spoke with the
victim in the evening of the party and the victim did not say anything about defendant
touching her. Tanya A. claimed she was in a daze about what happened and that
everything was “really foggy.”
       T.E., the victim’s caretaker, spoke to the victim and the victim gave the exact
same story to the police. On cross-examination, T.E. explained that she and her sisters
confronted defendant and hit him. He responded by saying that he “didn’t mean to.”
       A psychiatrist testified about child memory which may be influenced by the
questioner, whether an authority figure or someone the child trusts. Also, leading
questions, questions containing verbal and nonverbal cues, and the timing of the
interview may influence the child’s answers.
       After the defense case, the prosecutor was allowed to reopen and present evidence
of a prior incident of molest. Early one morning in 1997, defendant entered a bedroom
that 13-year-old E.W. shared with her sister, 12-year-old C.W., in the home of
defendant’s mother. Defendant put his hand under the covers and started touching C.W.

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on her foot, then her leg, and eventually her inner thigh. C.W. repositioned herself and
defendant stopped. Defendant then tried to pull the covers off of E.W. while he rubbed
and fondled her. He touched her thighs and tried to touch her breasts. E.W. told
defendant to stop. He did not. She could not recall at trial whether he put his hands up
her shorts toward her private area. When E.W. went to another room and tried to wake
up defendant’s mother, defendant hit E.W. three or four times in the chest and poked her
in the eye. E.W. and C.W. reported the incident to the police that same day.
                                       DISCUSSION
                                               I
       Defendant first contends that the trial court abused its discretion in admitting the
evidence of the prior incident, arguing it had little probative value in that it was not
similar to the charged offense, was remote in time, and was more inflammatory than the
charged offense. Defendant contends the error was prejudicial, requiring reversal. We
conclude that the trial court did not abuse its discretion.
Background
       Prior to trial, the People sought to admit evidence of the 1997 incident involving
E.W. and C.W. pursuant to Evidence Code sections 1108 (to show propensity) and 1101,
subdivision (b) (to show specific intent and lack of mistake). Defense counsel objected,
arguing the lack of a position of trust and force allegations in the present case, the prior
conduct evidence was inflammatory in that it was nearly an attempted rape, involving
very aggressive behavior and a battery, was remote (14 years), involved undue
consumption of time in view of a possible continuance to investigate further, had little
probative value, noting the difference in the ages of the victims and defendant, and a
potential witness, defendant’s mother, was deceased. Defense counsel argued that the
evidence should be excluded under Evidence Code section 352 because the probative
value was substantially outweighed by the prejudicial effect, claiming the prior conduct
evidence was more serious than the present offense.

                                               4
       After a thorough on-the-record analysis, the trial court admitted the evidence of
the prior incident under Evidence Code sections 352, 1108, and 1101, subdivision (b).
The trial court stated that the prior conduct evidence had great probative value since the
victim’s credibility was at issue. The court found that the incidents were “remarkably
similar” in that both incidents involved “children of friends,” defendant “had access to
the victims through his friendship with family members and friends,” both incidents
“occurred in a bedroom where the victims were separated from other persons in the
home,” both incidents “involved a touching or attempted touching of female victims
under the age [of] 14,” and both incidents “involved the touching or attempted touching
of the vaginal area.” The court found that the alleged prior conduct was less
inflammatory than the conduct alleged in the present case, noting the age of the victims in
the prior incident “versus the age of five in the current case” and that defendant
purportedly stated to the current victim that he wanted to perform oral sex on her. The
court stated that the jury would be instructed on the limited use of the propensity
evidence. The court concluded that there would be no undue consumption of time since
only two witnesses would be called to testify. The court would not advise the jury of the
outcome of the prior case (unless defense so requested) so that the jury would not punish
defendant for the prior unpunished conduct. The court concluded that the prior offense
evidence was not remote in time, citing several cases. In conducting the weighing
process under Evidence Code section 352, the court stated that “prejudicial” evidence is
“evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.” In admitting the evidence under
Evidence Code section 1101, subdivision (b), to show intent and absence of mistake or
accident, the court repeated several factors it had already mentioned. In addition, the
court referred to the People’s motion which recited the evidence in the current case when
Jamie B. saw defendant with the victim, defendant “jumped up and started talking about
kids and television,” and that “someone said to get the children out of the room.”

                                             5
Analysis
       Defendant contends the trial court abused its discretion in admitting the evidence
of the prior incident since it was remote, involved a different class of victim, and was
more inflammatory than the current offense. We find no abuse. We thus need not
discuss prejudice.
       Except as otherwise provided in Evidence Code sections 1101, 1102, 1103, 1108,
and 1109, character evidence to “prove . . . conduct on a specified occasion” is
inadmissible. (Evid. Code, § 1101, subd. (a).) Conduct evidence, however, may be
admissible to prove some fact such as intent or absence of mistake. (Evid. Code, § 1101,
subd. (b).) “Evidence of intent is admissible to prove that, if the defendant committed the
act alleged, he or she did so with the intent that comprises an element of the charged
offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of
mind that accompanied it.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn.
2, italics omitted.) The defendant’s intent was at issue because he pleaded not guilty to
committing a lewd act upon the victim, a specific intent offense. (Id. at p. 400, fn. 4;
People v. Daniels (1991) 52 Cal.3d 815, 857-858.) Under Evidence Code section 1108,
propensity evidence is admissible in specified sex offense cases including a criminal
action charging the defendant with lewd conduct under Penal Code section 288. (People
v. Falsetta (1999) 21 Cal.4th 903, 910-922.)
       Evidence Code section 352 provides: “The 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.”
       “[T]he probative value of ‘other crimes’ evidence is increased by the relative
similarity between the charged and uncharged offenses, the close proximity in time of the
offenses, and the independent sources of evidence (the victims) in each offense.
[Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged

                                               6
offenses resulted in actual convictions and a prison term, ensuring that the jury would not
be tempted to convict the defendant simply to punish him for the other offenses, and that
the jury’s attention would not be diverted by having to make a separate determination
whether defendant committed the other offenses. [Citation.]” (People v. Falsetta, supra,
21 Cal.4th at p. 917, italics omitted.) “[W]hen ruling on a[n] [Evidence Code] section
352 motion, a trial court need not expressly weigh prejudice against probative value, or
even expressly state it has done so. All that is required is that the record demonstrate the
trial court understood and fulfilled its responsibilities under Evidence Code section 352.
[Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 213.)
       We will not disturb a trial court’s ruling to admit evidence under Evidence Code
section 352 unless defendant shows that the trial court abused its discretion, that is, “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.)
       We conclude the trial court did not abuse its discretion under Evidence Code
section 352 in admitting the evidence of the prior incident of molest. The record reflects
that the trial court properly analyzed the evidence and the authority for admission for the
same, weighing the probative value and prejudicial effect. The trial court’s comments
were more than sufficient to show that it understood the balancing required under
Evidence Code section 352.
       In the prior incident, defendant molested two girls, ages 12 and 13 years old, in the
bedroom they shared in his mother’s home. In the current offense, defendant molested a
five-year-old girl in the upstairs bedroom of a home in which he was an invited guest.
Defendant attempted to touch (prior incident) and touched (current case) the girls’
vaginas when they were vulnerable and isolated from others. Defendant had access to the
girls through family/friends. The age difference between the girls is not that great. (See
People v. Escudero (2010) 183 Cal.App.4th 302, 306 [“persons with deviant sexual urges

                                              7
do not always limit their sex crimes to victims of the same age group”].) Here, all the
girls were under the age of 14 years. The offenses were sufficiently similar.
       Having occurred in 1997, about 14 years prior to the current offense, the prior
incident was not remote, considering the significant similarities between the prior
incident and the current offense. (People v. Branch (2001) 91 Cal.App.4th 274, 277-279,
284-285 [30 years not remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20
years not remote].)
       The prior incident was no more inflammatory than the current offense which
involved a much younger girl who defendant wanted to orally copulate, having told her
so. Although defendant had not been convicted of any offense stemming from the prior
incident, the jury was not told of the disposition of the charges. The charges had been
dismissed but, as defense counsel conceded, a parole violation had been found in lieu of
the charges going forward. Defendant’s current act of “jamming” the victim up against
him to commit his lewd conduct was as aggressive as his prior act of punching E.W. after
she escaped his lewd conduct, especially considering the victims’ respective ages.
       The evidence of the prior incident was probative of defendant’s intent and absence
of mistake and his propensity. Moreover, the trial court gave limiting instructions on the
purpose of the evidence of the prior incident. There is no evidence the jury punished
defendant for the prior incident. We find no abuse of discretion in admitting the evidence
of the prior incident. Finding no error, defendant’s due process claim has no merit.
(People v. Partida (2005) 37 Cal.4th 428, 436.)
                                             II
       Defendant contends the trial court abused its discretion in allowing the prosecution
to reopen their case to introduce the prior conduct evidence just prior to closing
arguments, rendering the trial unfair. We disagree.




                                             8
Background
       When the defense rested, defense counsel noted that he may have a witness to
impeach the prosecutor’s “two 1108 witnesses.” The prosecutor then moved to reopen
her case, noting that both C.W. and E.W. were present to testify. Defense counsel
objected, claiming that the prosecutor had already closed her case and the witnesses
“weren’t available this morning, and we moved on with defense witnesses.” The
prosecutor responded that in obtaining the presence of C.W. and E.W., there had been
difficulties about which the court and defense counsel had been advised throughout the
trial including the fact that E.W. was pregnant and about to deliver at any moment, had
lost her home and was between residences, and that C.W. lived in Oakland. Before the
first defense witness, the prosecutor noted her last witness, a detective, had called and
learned that E.W. and C.W. were on their way and that she (the prosecutor) had informed
the court and defense counsel at a sidebar. Citing case law and statutes, the prosecutor
argued that the court had broad discretion to allow her to reopen.
       Citing Evidence Code section 320, the court determined that the prosecution
would be allowed to reopen its case, finding that the court and parties had a good faith
belief the witnesses would testify in that there were pretrial rulings concerning their
testimony, the witnesses had initially been cooperative, and that they were under
subpoena to be present that morning. The court stated that it was the court’s
understanding as well as defense counsel’s at all times that the witnesses would testify.
The court found that the prosecutor had been extremely diligent in obtaining the
witnesses’ presence and that the court had been lenient with both parties, noting that the
court had waited for defense witnesses. The court stated that it would grant defense
counsel time to present rebuttal if so requested. The court also stated its plan to instruct
the jury on the limited nature of the witnesses’ testimony.




                                              9
Analysis
       Under Evidence Code section 3201 and Penal Code sections 10442, 10933 and
10944, the trial court has inherent and statutory discretion to control the proceedings to



1      Evidence Code section 320 provides: “Except as otherwise provided by law, the
court in its discretion shall regulate the order of proof.”
2      Penal Code section 1044 provides: “It shall be the duty of the judge to control all
proceedings during the trial, and to limit the introduction of evidence and the argument of
counsel to relevant and material matters, with a view to the expeditious and effective
ascertainment of the truth regarding the matters involved.”
3       Penal Code section 1093 provides: “The jury having been impaneled and sworn,
unless waived, the trial shall proceed in the following order, unless otherwise directed by
the court: [¶] (a) If the accusatory pleading be for a felony, the clerk shall read it, and
state the plea of the defendant to the jury, and in cases where it charges a previous
conviction, and the defendant has confessed the same, the clerk in reading it shall omit
therefrom all that relates to such previous conviction. In all other cases this formality
may be dispensed with. [¶] (b) The district attorney, or other counsel for the people, may
make an opening statement in support of the charge. Whether or not the district attorney,
or other counsel for the people, makes an opening statement, the defendant or his or her
counsel may then make an opening statement, or may reserve the making of an opening
statement until after introduction of the evidence in support of the charge. [¶] (c) The
district attorney, or other counsel for the people shall then offer the evidence in support of
the charge. The defendant or his or her counsel may then offer his or her evidence in
support of the defense. [¶] (d) The parties may then respectively offer rebutting
testimony only, unless the court, for good reason, in furtherance of justice, permit them to
offer evidence upon their original case. [¶] (e) When the evidence is concluded, unless
the case is submitted on either side, or on both sides, without argument, the district
attorney, or other counsel for the people, and counsel for the defendant, may argue the
case to the court and jury; the district attorney, or other counsel for the people, opening
the argument and having the right to close. [¶] (f) The judge may then charge the jury,
and shall do so on any points of law pertinent to the issue, if requested by either party;
and the judge may state the testimony, and he or she may make such comment on the
evidence and the testimony and credibility of any witness as in his or her opinion is
necessary for the proper determination of the case and he or she may declare the law. At
the beginning of the trial or from time to time during the trial, and without any request
from either party, the trial judge may give the jury such instructions on the law applicable
to the case as the judge may deem necessary for their guidance on hearing the case.
Upon the jury retiring for deliberation, the court shall advise the jury of the availability of

                                              10
ensure the efficacious administration of justice. A trial court has broad discretion to
allow a party to reopen to present additional evidence. (People v. Cuccia (2002) 97
Cal.App.4th 785, 792-793.) In determining whether to grant a request to reopen, the trial
court considers the stage of the proceedings, the party’s diligence, the risk the jury would
give undue emphasis to the new evidence, and the significance of the evidence. (People
v. Jones (2003) 30 Cal.4th 1084, 1110.)
       The credibility of the victim was at issue and the significance of the propensity
evidence was thus substantial, despite the People’s argument. The prosecutor explained
her efforts in obtaining the witnesses and the court found that the prosecutor had been
diligent. Defense counsel had been apprised prior to trial that propensity evidence would
be introduced and he had been advised on the status of the witnesses and their availability
throughout the trial. The court stated it would grant a continuance for rebuttal in the
event defense so requested and noted that it had been lenient for tardy defense witnesses.
The court gave the limiting instruction on the new evidence. Defendant has failed to
demonstrate that the trial court abused its discretion in allowing the prosecutor to reopen
and introduce the propensity evidence after the defense case.




a written copy of the jury instructions. The court may, at its discretion, provide the jury
with a copy of the written instructions given. However, if the jury requests the court to
supply a copy of the written instructions, the court shall supply the jury with a copy.”
(Italics added.)
4      Penal Code section 1094 provides: “When the state of the pleadings requires it, or
in any other case, for good reasons, and in the sound discretion of the court, the order
prescribed in Section 1093 may be departed from.”

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                                  DISPOSITION
     The judgment is affirmed.



                                                NICHOLSON   , J.



We concur:



     RAYE               , P. J.



     BLEASE             , J.




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