Filed 2/22/16 P. v. Bergara CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B260564

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. NA093355)
         v.

JOSE CARLOS BERGARA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mike Camacho and Douglas Sortino, Judges. Affirmed.
         Vanessa Place, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Corey J. Robins, Deputy Attorneys General, for Plaintiff and
Respondent.


         Appellant Jose Carlos Bergara was charged with two counts of committing a
lewd act upon a child (Pen. Code, § 288, subd. (a)) and one count of oral
copulation of a child under the age of 10 (Pen. Code, § 288.7, subd. (b)). In his
first trial, held in November 2011, the jury convicted on the two lewd act counts
and deadlocked on the oral copulation count. The court declared a mistrial as to
the third count and granted the People’s motion for a retrial. Upon retrial in
August 2013, the jury found appellant guilty of the oral copulation count. The
court sentenced appellant on count 1 to eight years, on count 2 to a consecutive
term of two years, and on count 3 to a consecutive term of 15 years to life.
Appellant raises numerous evidentiary challenges. We affirm.


                                   BACKGROUND
Prosecution Evidence1
       Appellant previously lived with his girlfriend, Sara A. and her two
daughters, S. (born Aug. 2003) and Lizbeth (born Sept. 2007). They lived in one
bedroom of a house and all slept in the same room. Appellant and Sara A. had a
baby daughter, D., who also lived with them.
       According to S., appellant and Sara A. engaged in sex and watched
pornography every day in the children’s presence. S. asked her mother to stop, but
Sara A. “got mad.”
       When S. was five years old, appellant began “putting his private part in [her]
private parts” almost every day until S. turned six.2 At the second trial, S. testified
that appellant touched her private parts with his hand or his penis almost every day,



1
       The evidence presented at both trials was substantially the same. Rather than
repeating both sets of evidence, any differences will be noted.
2
       Appellant’s conduct against S. is not at issue in this appeal, which addresses only
the charges related to his conduct against Lizbeth.

                                             2
with his pants and underwear pulled down. S. told her mother, but Sara A. said S.
was dreaming.
      When S. was six years old and Lizbeth one year old, S. needed to use the
bathroom, so she went in even though she knew someone was already in there.
After washing her hands, she turned to dry them and saw through the shower
curtain the shadow of appellant in the shower with Lizbeth, putting his penis in
Lizbeth’s mouth. S. was able to see through the plastic shower curtain, which had
pictures of leaves on it. At retrial, S. testified that she knew it was Lizbeth and
appellant because she knew how tall Lizbeth was, and no one else was in the house
at the time. S. screamed and went to her room. When S. told Sara A. what she had
seen, Sara A. told S. she had been dreaming.
      At the second trial, S. did not remember what she did or said after seeing
appellant and Lizbeth in the shower. She did not remember if appellant said
anything to her or if he stopped when he saw her. She did not remember if
appellant had ever given Lizbeth showers before.
      S. and Lizbeth were placed in foster care with Maria L. in January 2010.
Maria L. adopted S. and Lizbeth in April 2013.
      After being placed with Maria L., S. told Maria L. she had been sexually
abused. S. also told Maria L. about seeing appellant in the shower with Lizbeth.
After S. told Maria L. she did not want to have visits with appellant because of his
conduct, the visits were stopped.
      Maria L. noticed that Lizbeth sometimes would “lay on her side” and
simulate having sex. Lizbeth told Maria L. she saw appellant “doing that to her
mother.” Lizbeth also told Maria L. appellant “put his pee-pee in her mouth.”
When Maria L. bathed Lizbeth, Lizbeth would bend over and say that appellant
“would always put his pee-pee right there in her little tail.” Maria L. reported these

                                           3
accusations to social workers and police officers, and she took Lizbeth to be
examined by a doctor.
      Lizbeth often repeated the statements about appellant’s actions, sometimes
following Maria L. around the house, saying “Mommy, my stepdad put his pee-pee
in my . . . pee-pee and in the back.” When she did so, Maria L. would reassure her
that those things would not happen to her any more.
      Nancy Clark, a social service practitioner for San Bernardino County
Children and Family Services, was assigned to Lizbeth and S.’s case in July 2010.
She acknowledged that a young child exposed to pornography or sex might “act
out” or “fantasize,” but she did not believe that happened in this case. She found
S. to be very credible when she interviewed her.
      Baldwin Park Police Detective Diana Larriva testified that she arrested and
interviewed appellant in July 2010, but she questioned him only about S. because
she was unaware of the allegations involving Lizbeth. During the interview,
appellant initially denied sexually abusing S. but subsequently admitted that once
when S. was seven years old, he became sexually aroused by her, got on top of her
and began thrusting his hips against her. He said his penis “may have slightly
penetrated” S.’s vagina, but he stopped when S. yelled out and he realized what he
was doing was wrong. Appellant denied abusing Lizbeth.
      At the second trial, Detective Larriva further testified that she interviewed
Lizbeth, S. and Maria L. after learning of the allegations regarding Lizbeth. S. told
Detective Larriva about the incident in the shower and said that appellant yelled at
her and told her to leave the bathroom.
      Lizbeth testified at the second trial, but not at the first. She was five years
old at the time of the second trial. She testified that appellant was “the man that
[she didn’t] like” because he “put his pee-pee in [her] mouth” when she was two

                                           4
years old. She said it happened at her mother’s house but she did not remember
which room. She initially testified that she told S. about it, but subsequently stated
that she told only Maria L. She also stated that appellant put his penis in her butt
and that she told Maria L. about this.


Defense Evidence
       Appellant testified at the first trial that he and Sara A. had sex in the
bedroom they shared with the children after the children fell asleep, but sometimes
the children awakened and saw them having sex. He and Sara A. occasionally
watched pornography, and the children sometimes awakened and saw it.
       Appellant admitted sexually abusing S. one time, by accident. According to
appellant, he was aroused by phone sex with Sara A. when S. got in bed with him
and climbed on him to ride him like a horse. Appellant got on top of S. and began
to move as if he was having sex with Sara A. S.’s clothes were on, and appellant
did not remove his underwear. He denied penetrating S. Appellant pled no contest
to one count of violating Penal Code section 288, subdivision (a) based on this
incident with S. He was sentenced to three years in prison and was serving that
term at the time of the first trial.
       Appellant denied ever showering with Lizbeth or sexually abusing her. He
locked the bathroom door when he showered, and S. and Lizbeth never entered the
bathroom while he showered.
       Appellant did not testify at the second trial. Covina Police Officer Tom
Tardiff and social worker Patricia Walsh testified. Officer Tardiff testified that he
interviewed S. and Maria L. after receiving a child abuse referral regarding S. from
Walsh. S. reported that appellant put his penis in her vagina on ten occasions and



                                            5
had rubbed her vagina and bottom with his hands. There were no reports of abuse
regarding Lizbeth.
      Walsh was a social worker with the foster family agency through which
Maria L. was a foster parent. In June 2010, Maria L. told Walsh that S. no longer
wanted to see appellant because he had sexually abused her. Maria L. reported that
S. had never seen appellant sexually abuse Lizbeth. However, a few months later
Maria L. told Walsh that S. reported the incident in the shower between appellant
and Lizbeth.


                                     DISCUSSION
I.    Admission of Lizbeth’s Statements
      Appellant contends the trial court erred in admitting Lizbeth’s statements to
Maria L. under Evidence Code section 13603 because they were unreliable and
insufficiently corroborated by other evidence. He further argues that the admission
of her statements violated section 702 and his due process rights.


      A.       Section 402 Hearing
      Prior to the first trial, the court held a section 402 hearing to determine the
admissibility of Lizbeth’s statements in the event she failed to qualify as a witness


under section 701.4 Lizbeth, who was four years old, did not qualify as a witness
because she was unable to understand the difference between the truth and a lie


3
      Unspecified statutory references will be to the Evidence Code.
4
       Under section 701: “A person is disqualified to be a witness if he or she is: [¶]
(1) Incapable of expressing himself or herself concerning the matter so as to be
understood, either directly or through interpretation by one who can understand him; or
                                              6
and unable to express herself sufficiently to give testimony. The prosecution
therefore sought to introduce Lizbeth’s statements to Maria L. pursuant to section
1360.5
       Maria L. testified that, about four months after the girls began living with
her, she noticed Lizbeth “doing sexual things.” Once she saw Lizbeth “touching
her private parts with her hand.” She asked Lizbeth why she did that, and Lizbeth
replied that “her stepfather would touch her parts.” When Maria L. bathed
Lizbeth, Lizbeth repeatedly said that appellant “put his private parts in her mouth”
and “in the back.” Maria L. would ask Lizbeth if she was sure, and Lizbeth would
reply, “Yes, Mommy. Yes.” Lizbeth repeated these statements to Maria L. every
day, and the day before the hearing she again told Maria L., “my stepfather put his
pee-pee in my mouth and my butt.” Maria L. acknowledged that Lizbeth repeated
the statements “like a little parrot.” Maria L. testified that she tried to comfort
Lizbeth when she made these statements, but she denied rewarding Lizbeth with
cookies or treats for repeating the statements. She stated that she gave Lizbeth
affection at other times, not only when she repeated the statements.
       To corroborate Maria L.’s testimony, the People presented the testimony of
Detective Larriva, who interviewed appellant in 2010 about the sexual abuse
allegations. Detective Larriva testified, as she did at trial, about appellant’s
admission that he “thrust his hips on” S. and “may have accidentally” penetrated
her vagina with his penis.


[¶] (2) Incapable of understanding the duty of a witness to tell the truth.” (§ 701, subd.
(a).)
5
      Section 1360 “creates a limited exception to the hearsay rule in criminal
prosecutions for a child’s statements describing acts of child abuse or neglect, including
statements describing sexual abuse. [Citations.]” (People v. Roberto V. (2001) 93
Cal.App.4th 1350, 1367.)
                                             7
      S. also testified at the hearing. She testified about the incident in which she
saw appellant put his penis in Lizbeth’s mouth while they were in the shower. She
screamed, but she did not tell appellant to stop because he would have hit her. S.
ran out of the bathroom and later told her mother, but Sara A. said S. was
dreaming. S. later told Maria L. about the incident.
      The trial court found sufficient indicia of reliability supported Lizbeth’s
statements. The court reasoned that a child of Lizbeth’s young age typically would
not make such statements, and that her statements were made spontaneously,
without elicitation from anyone. In addition to finding sufficient indicia of
reliability, the court found that Lizbeth’s statements were corroborated by S.’s
account of seeing appellant in the shower with Lizbeth and by appellant’s own
admission of improper sexual contact with S.
      After finding that the statements satisfied section 1360, the court found that
the statements did not constitute inadmissible hearsay under Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). Reasoning that Lizbeth’s statements
were made spontaneously and were not made to a child abuse expert during a
forensic examination or to a police officer, the court found that her statements were
not testimonial for Crawford purposes. The court further found that, under section
352, the probative value of the statements outweighed the prejudicial effect
because the statements were crucial to the prosecution case.


      B.     Section 1360
      Section 1360 provides in pertinent part: “(a) In a criminal prosecution
where the victim is a minor, a statement made by the victim when under the age of
12 describing any act of child abuse or neglect performed with or on the child by
another, or describing any attempted act of child abuse or neglect with or on the

                                          8
child by another, is not made inadmissible by the hearsay rule if all of the
following apply: [¶] (1) The statement is not otherwise admissible by statute or
court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of
the jury, that the time, content, and circumstances of the statement provide
sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the
proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may
be admitted only if there is evidence of the child abuse or neglect that corroborates
the statement made by the child.” (§ 1360, subd. (a).)
      Evidence admitted under section 1360 must “satisfy the ‘particularized
guarantees of trustworthiness’ standard under the confrontation clause. [Citation.]”
(People v. Eccleston (2001) 89 Cal.App.4th 436, 445.) Factors relevant to whether
hearsay statements by a child witness in a child sexual abuse case are reliable and
bear indicia of reliability are “(1) spontaneity and consistent repetition; (2) the
mental state of the declarant; (3) use of terminology unexpected from a child of
that age; and (4) lack of a motive to fabricate. [Citation.] Section 1360,
subdivision (a)(2) effectively incorporates that standard by requiring that the time,
content and circumstances of the statement itself provide sufficient indicia of
reliability. . . . [¶] A trial court’s findings concerning the indicia of reliability are
subject to independent review on appeal. [Citation.]” (Id. at pp. 445-446.)
      Appellant contends Lizbeth’s statements were inherently unreliable and
uncorroborated by other evidence. He argues that the only basis for the trial
court’s finding of reliability was the spontaneity of Lizbeth’s statement, “Mommy,
my stepfather put his pee-pee in my mouth and in my butt,” and that there were no
other indicia of reliability. We are not persuaded.
      Lizbeth told Maria L. repeatedly that appellant touched her and “put his
private parts in her mouth” and “in the back.” Not only were her statements

                                            9
repeated consistently, they were corroborated by Maria L.’s observations of
Lizbeth doing “sexual things.” As the trial court reasoned, a child of her age
would not normally make such statements, and the statements were made
spontaneously, with no elicitation from anyone. Moreover, as the court noted,
Maria L.’s observations of Lizbeth’s behavior were not subject to section 1360 and
thus were admissible.
      Lizbeth’s statements also were consistent with S.’s account of seeing
appellant in the shower with Lizbeth. Appellant contends that “[S.]’s description
was confused and contradictory.” However, S. never wavered from the salient
point that she saw appellant putting his penis in Lizbeth’s mouth, even if there
were minor discrepancies in some of the details of the incident. S.’s account thus
corroborated Lizbeth’s statements, providing another indicium of reliability.
      Appellant contends that Lizbeth had a motive to fabricate in order to remain
placed with Maria L. and to receive “affection and attention” from Maria L. This
is entirely speculative. There is no evidence that Lizbeth understood that
spontaneously making these statements to Maria L. would enable her to remain
with Maria L. In addition, Maria L. testified that although she tried to comfort
Lizbeth when she made these statements, she did not reward Lizbeth for repeating
the statements. She gave Lizbeth affection at other times, not only when she
repeated the statements.
      Appellant relies on the trial court’s finding that Lizbeth was not competent
to testify because she was unable to understand the difference between the truth
and a lie. However, the California Supreme Court has held that “a finding that a
child is not competent to differentiate between truth and falsehood or to understand
the duty to tell the truth at the time he or she is prepared to testify should not be an
absolute bar to the admission of the child’s hearsay testimony, but only one

                                           10
circumstance to be considered in determining whether the child’s statement is
reliable.” (In re Cindy L. (1997) 17 Cal.4th 15, 18; see also People v. Brodit
(1998) 61 Cal.App.4th 1312, 1330 [“even if the child was incompetent to testify at
trial because he or she did not understand the duty to tell the truth, this did not
necessarily render the child’s hearsay statements unreliable, but was merely a
factor to consider”].) As discussed above, other circumstances indicated the
statements were reliable, despite the finding that Lizbeth was not competent to
differentiate between truth and falsehood. Because Lizbeth’s statements were
supported by sufficient indicia of reliability, the trial court did not abuse its
discretion in admitting them.


      C.     Sections 701 and 702
      Section 701 provides in part that a person is disqualified to be a witness if he
or she is “[i]ncapable of understanding the duty of a witness to tell the truth.”
(§ 701, subd. (a)(2).) Under section 702, “the testimony of a witness concerning a
particular matter is inadmissible unless he has personal knowledge of the matter.”
(§ 702, subd. (a).)
      Appellant contends that Lizbeth’s statements to Maria L. were inadmissible
under section 702 because the prosecution did not establish that Lizbeth was
“reliable in the first instance.” Appellant did not raise an objection under section
702 in the trial court and therefore has forfeited this claim. “[T]rial counsel’s
failure to object to claimed evidentiary error on the same ground asserted on appeal
results in a forfeiture of the issue on appeal. [Citations.]” (People v. Dykes (2009)
46 Cal.4th 731, 756; see Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1066
[objection pursuant to § 702 must be raised in the trial court]; People v. Lewis



                                           11
(2001) 26 Cal.4th 334, 357 [failure to object to witness’s testimony based on § 702
constituted a waiver of the claim on appeal] (Lewis).)
       Even if not forfeited, appellant’s claim fails.6 Appellant relies on People v.
Lyons (1992) 10 Cal.App.4th 837 (Lyons), in which the court held that the
witness’s preliminary hearing testimony was erroneously admitted at trial because
it showed “that the witness was delusional and unable to distinguish truth from lies
at the time of the preliminary hearing.” (Id. at p. 844.) In Lyons, the witness’s
statements at the preliminary hearing were provably false.7 By contrast, there were
numerous circumstances here indicating that Lizbeth’s statements were reliable at
the time she made them, and her statements were consistent and corroborated by
other evidence. Lyons accordingly does not support appellant’s position. (See


6
        Because we conclude that appellant’s argument fails, we further reject his claim
that trial counsel rendered ineffective assistance of counsel by failing to object on this
ground. “‘If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.’ [Citation.] ‘Failure to object
rarely constitutes constitutionally ineffective legal representation.’ [Citation.]” (People
v. Gray (2005) 37 Cal.4th 168, 207.) “Further, ‘a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.’ [Citation.]” (People v. Carrasco (2014) 59
Cal.4th 924, 982.) For the reasons discussed above, we conclude that Lizbeth’s
statements were properly admitted. Appellant therefore did not suffer prejudice from
their admission.
7
       The witness “claimed to have a third orifice between her vagina and anus. It was
stipulated that [she] did not have a third orifice.” (Lyons, supra, 10 Cal.App.4th at p.
842.) The witness also claimed that the defendant assaulted her in retaliation for her
testimony against him when he was tried for her husband’s murder, but there had never
been a trial concerning her husband’s death. (Id. at p. 843.)

                                             12
Lewis, supra, 26 Cal.4th at p. 357 [although the witness’s “testimony may have
consisted of inconsistencies, incoherent responses, and possible hallucinations,
delusions and confabulations, [he] ‘presented a plausible account of the
circumstances of [the] murder’”]; People v. Anderson (2001) 25 Cal.4th 543, 574
[noting “the many indicia by which a rational trier of fact could conclude that [the
witness], despite her specific delusions, was actually present during the [crime],
and had accurately perceived and recollected those events,” such as her “plausible
account of the circumstances” and description of details unlikely to be known by
someone not present] (Anderson).)
      Appellant contends that the prosecution was required to establish that
“Lizbeth was reliable in the first instance” in order for her statements to be
admissible. However, “[e]xcept as otherwise provided by statute, every person,
irrespective of age, is qualified to be a witness and no person is disqualified to
testify to any matter.” (§ 700.) “Capacity to communicate, or to understand the
duty of truthful testimony, is a preliminary fact to be determined exclusively by the
court, the burden of proof is on the party who objects to the proffered witness, and
a trial court’s determination will be upheld in the absence of a clear abuse of
discretion. [Citations.]” (Anderson, supra, 25 Cal.4th at p. 573.) Appellant has
not met his burden of establishing that Lizbeth was unreliable or unable to
“accurately perceive[] and recollect[]” the events. (Id. at p. 574.) “In short, there
was no substantial basis for the court to exclude [Lizbeth’s] testimony; rather, it
was up to the jury to determine whether [Lizbeth’s] recollections were true.
[Citations.]” (Lewis, supra, 26 Cal.4th at p. 358.)




                                          13
      D.       Due Process
      Appellant contends that the admission of Lizbeth’s statements to Maria L.
violated his federal due process rights because the “[a]dmission of unreliable
evidence violates a defendant’s Fourteenth Amendment right to a fair trial.”
      “To prove a deprivation of federal due process rights, [a defendant] must
satisfy a high constitutional standard to show that the erroneous admission of
evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the
jury may draw from the evidence can its admission violate due process. Even then,
the evidence must “be of such quality as necessarily prevents a fair trial.”
[Citations.] Only under such circumstances can it be inferred that the jury must
have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive
issue is . . . whether the trial court committed an error which rendered the trial “so
‘arbitrary and fundamentally unfair’ that it violated federal due process.”
[Citation.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230
(Albarran).)
      “The United States Supreme Court has determined that the introduction of
reliable hearsay evidence in a criminal case does not violate either due process or
the right to confront and cross-examine witnesses. [Citations.] Indicia of
reliability are ‘particularized guarantees of trustworthiness’ concerning the hearsay
statement and the totality of circumstances that surround the making of the
statement that render the declarant particularly worthy of belief in making its
determination of trustworthiness. [Citation.]” (People v. Tatum (2003) 108
Cal.App.4th 288, 295 (Tatum).)
      As discussed above, the trial court properly found that Lizbeth’s statements
to Maria L. were supported by indicia of reliability. “Admission of hearsay that is
trustworthy and contains sufficient indicia of reliability violates neither due

                                          14
process or the confrontation clause. [Citations.]” (Tatum, supra, 108 Cal.App.4th
at p. 300.) Appellant has failed to establish that the admission of Lizbeth’s
testimony rendered his trial “‘arbitrary and fundamentally unfair.’” (Albarran,
supra, 149 Cal.App.4th at p. 230.)


II.   Confrontation Clause
      Appellant contends the admission of Lizbeth’s statements to Maria L. in the
first trial and her testimony in the second trial violated his Sixth Amendment rights
to confrontation and cross-examination and his due process rights. The trial
court’s rulings on the admission and exclusion of evidence are reviewed for abuse
of discretion. (People v. Chism (2014) 58 Cal.4th 1266, 1291.) “‘[I]f the ruling
was correct on any ground, we affirm.’ [Citation.]” (Id. at p. 1295, fn. 12.)
      “‘“The United States Supreme Court has established that a defendant’s Sixth
Amendment right to confrontation is a fundamental right, applicable to the states
through the Fourteenth Amendment. [Citation.] The California Constitution now
provides a specific guarantee of the right to confrontation: ‘The defendant in a
criminal cause has the right . . . to be confronted with the witnesses against the
defendant.’ (Cal. Const., art. I, § 15.)”’” (People v. Christensen (2014) 229
Cal.App.4th 781, 789-790.)
      However, the confrontation clause “‘does not necessarily prohibit the
admission of hearsay statements against a criminal defendant . . . .’” (People v.
Kons (2003) 108 Cal.App.4th 514, 521.) “‘Only the admission of testimonial
hearsay statements violates the confrontation clause . . . .’ [Citations.] . . . ‘The
court [in Crawford, supra, 541 U.S. 36] explained that the confrontation clause
addressed the specific concern of “[a]n accuser who makes a formal statement to
government officers” because that person “bears testimony in a sense that a person

                                          15
who makes a casual remark to an acquaintance does not.” [Citation.] The
statement of a three-year-old declarant made to his aunt is more like a “casual
remark to an acquaintance” and is therefore not a testimonial statement under
Crawford. [Citation.]” (People v. Loy (2011) 52 Cal.4th 46, 66 (Loy).)
“To be ‘testimonial,’ (1) the statement must be ‘made with some degree of
formality or solemnity,’ and (2) its ‘primary purpose’ must ‘pertain[] in some
fashion to a criminal prosecution.’ [Citations.]” (People v. Holmes (2012) 212
Cal.App.4th 431, 438 (Holmes); People v. Edwards (2013) 57 Cal.4th 658, 705
(Edwards).)
      Lizbeth’s statements to Maria L. are not testimonial. They were not made
with any degree of formality, and their primary purpose did not pertain to a
criminal prosecution. Appellant contends that Lizbeth’s statements were made for
purposes of criminal prosecution because Maria L. was her foster mother and thus
“any objective witness would reasonably believe [the statements] would be
available for a later prosecution.” Appellant’s argument is not supported by the
case he cites, Davis v. Washington (2006) 547 U.S. 813 (Davis). In the two
consolidated cases in Davis, the Supreme Court considered whether statements
made to law enforcement personnel were testimonial. In the first of the
consolidated cases, Davis, the court concluded that the witness’s statements during
a 911 call were not testimonial for purposes of the confrontation clause. (Id. at pp.
826-828.) The court reasoned that the circumstances indicated the primary
purpose of the statements was not to give a formal report of past facts, but “to
enable police assistance to meet an ongoing emergency.” (Id. at p. 828.)
      By contrast, in the second of the consolidated cases, Hammon v. Indiana, the
court held that the statements were testimonial. (Davis, supra, 547 U.S. at p. 829.)
There, police officers responded to a domestic violence call, but when they arrived

                                         16
the wife said there was no problem. One of the officers re-interviewed the wife
and again asked her to explain what had occurred. At trial, the officer testified that
the questioning was part of an investigation into possible criminal conduct. The
court thus concluded that, as “statements under official interrogation,” they were
“inherently testimonial.” (Id. at p. 830.)
       Lizbeth’s statements are more similar to the statements during the 911 call in
Davis than to those in Hammon. They were not made in response to questioning
by an officer during an investigation. Instead, they were made spontaneously to
her foster mother. Thus, her statements lack the “two critical components” of
testimonial statements: they were not made with any degree of formality, and their
primary purpose did not pertain to a criminal prosecution. (Edwards, supra, 57
Cal.4th at p. 705; see Holmes, supra, 212 Cal.App.4th at p. 438 [“It is now settled
in California that a statement is not testimonial unless both criteria are met.”].)
Maria L.’s status as Lizbeth’s foster mother does not transform the statements into
testimonial statements for purposes of the confrontation clause. The admission of
Lizbeth’s statements to Maria L. in the first trial and her testimony in the second
trial did not violate appellant’s constitutional rights.


III.   Propensity Evidence
       Section 1108 provides in part: “In a criminal action in which the defendant
is accused of a sexual offense, evidence of the defendant’s commission of another
sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).)




                                             17
Appellant contends the evidence of other crimes involving S. should not have been
admitted in either trial.8 We disagree.


       A.     Hearing Before First Trial
       The trial court weighed the probative value against the prejudicial impact of
the uncharged sex offense involving S. pursuant to section 352 and concluded that
there was no less prejudicial alternative to admitting the evidence. The court
reasoned that the offense upon S. was not remote and in fact was committed during
the same time frame as the charged offenses. The court further reasoned that the
offense was similar to the charged offense and that, although it was extremely
prejudicial, the uncharged offense helped explain S.’s state of mind when she
observed Lizbeth. Although the court admitted the evidence of appellant’s conduct
involving S., the court excluded as unduly prejudicial evidence that appellant
inflicted corporal injury on his daughter, D., describing it as “overkill.”


       B.     Hearing Before Second Trial
       At the second trial, which involved only the oral copulation count, the
People sought to admit, inter alia, evidence of the uncharged sexual offenses
against S., other sexual offenses against Lizbeth, and physical abuse of D. and S.
The trial court concluded that any prior acts against S. and Lizbeth were admissible
because they were similar to the charged offense and were committed close in time
to the charged offense. The court further reasoned that the victims were of similar
ages and in appellant’s care in the same home, and that the evidence was relevant
to the victims’ credibility.

8
         Appellant testified about the purportedly “accidental” sexual abuse of S. in his
first trial and therefore cannot challenge the admission of the evidence of that incident in
the first trial.
                                              18
       C.     Section 1108
       In deciding whether to admit propensity evidence under section 1108, “trial
judges must consider such factors as its nature, relevance, and possible remoteness,
the degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity to the
charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all
of the defendant’s other sex offenses, or excluding irrelevant though inflammatory
details surrounding the offense. [Citations.]” (People v. Falsetta (1999) 21
Cal.4th 903, 917 (Falsetta).) “Ultimately, the determination of whether the
probative value of such evidence is substantially outweighed by the possibility of
undue consumption of time, unfair prejudice or misleading the jury is ‘entrusted to
the sound discretion of the trial judge who is in the best position to evaluate the
evidence. [Citation.]’ [Citation.]” (People v. Ennis (2010) 190 Cal.App.4th 721,
733.) “The court’s ruling under section 1108 is subject to review for abuse of
discretion. [Citation.]” (Loy, supra, 52 Cal.4th at p. 61.) The court did not abuse
its discretion in admitting the evidence in either the first trial or the retrial.
       Appellant contends that the evidence was so prejudicial that it affected his
right to a fair trial and was insufficiently probative. “Evidence of previous
criminal history inevitably has some prejudicial effect. But under section 1108,
this circumstance alone is no reason to exclude it. ‘[S]ection 1108 affects the
practical operation of . . . section 352 balancing “‘because admission and
consideration of evidence of other sexual offenses to show character or disposition
would be no longer treated as intrinsically prejudicial or impermissible. Hence,

                                            19
evidence offered under [section] 1108 could not be excluded on the basis of
[section] 352 unless “the probability that its admission will . . . create substantial
danger of undue prejudice” . . . substantially outweighed its probative value
concerning the defendant’s disposition to commit the sexual offense or offenses
with which he is charged and other matters relevant to the determination of the
charge. As with other forms of relevant evidence that are not subject to any
exclusionary principle, the presumption will be in favor of admission.’”
[Citation.]’ [Citation.]” (Loy, supra, 52 Cal.4th at p. 62.)
      Appellant has not overcome the presumption in favor of admissibility.
“‘The principal factor affecting the probative value of an uncharged act is its
similarity to the charged offense. . . .’ [Citation.]” (People v. Hollie (2010) 180
Cal.App.4th 1262, 1274 (Hollie).) Here, the uncharged offenses were very similar
to the charged offenses and were committed during the same time frame. All the
acts involved girls of approximately the same age, sisters who lived with appellant
and were left in his care while their mother was at work. Moreover, the facts of the
uncharged offenses “were not particularly inflammatory compared to” the facts of
the charged offense. (Loy, supra, 52 Cal.4th at p. 62.)
      Because of the similarity between the offenses, the probative value
concerning appellant’s disposition to commit the offenses was great. In addition,
the evidence was relevant to supporting the credibility of S. and Lizbeth. The fact
that appellant had been convicted of the offenses against Lizbeth in the first trial
further “supports their admission” in the second trial because “[h]is commission of
those crimes had already been established and was thus certain, and [he] bore no
new burden of defending against the charge[s].” (Loy, supra, 52 Cal.4th at p. 61.)
The possibility of undue prejudice does not outweigh the probative value of the
evidence. (See Hollie, supra, 180 Cal.App.4th at p. 1274 [“‘The factors affecting

                                           20
the prejudicial effect of uncharged acts include whether the uncharged acts resulted
in criminal convictions and whether the evidence of uncharged acts is stronger or
more inflammatory than the evidence of the charged offenses.’”].)
      Appellant contends that S.’s testimony regarding appellant’s abuse of her
corroborated her testimony regarding appellant’s abuse of Lizbeth, which he
describes as “self-corroboration.” However, the evidence regarding appellant’s
abuse of S. was not dependent solely on S.’s testimony. Rather, appellant himself
admitted to the conduct in the first trial, and Detective Larriva testified about the
abuse of S. in both trials.
      Appellant contends that the admission of propensity evidence under section
1108 violated his right to a fair trial and his rights to due process and equal
protection. As appellant concedes, his challenge to the constitutionality of section
1108 has been rejected by the California Supreme Court. (See Loy, supra, 52
Cal.4th at pp. 60-61; Falsetta, supra, 21 Cal.4th at pp. 910–922.) We decline his
invitation to revisit the issue and we follow our high court’s precedent, as we must.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456; Lucent
Technologies, Inc. v. Board of Equalization (2015) 241 Cal.App.4th 19, 35 [“We
are bound to follow the decisions of our Supreme Court . . . .”].)




                                          21
                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 WILLHITE, J.




We concur:




EPSTEIN, P. J.




MANELLA, J.




                            22
