Filed 9/18/14 P. v. Viramontes CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B252616

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. SA080761)
         v.

ARMANDO VIRAMONTES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn
A. Solorzano, Judge. Affirmed.
         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Yun K. Lee, Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney
General, for Plaintiff and Respondent.
                                            _____________________
        Defendant and appellant Armando Viramontes was convicted by a jury on four
counts of lewd and lascivious acts upon a child under the age of 14 with substantial
sexual conduct (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8)). Defendant waived
his right to a jury on the prior conviction allegations and the court found true the
allegations that defendant suffered two convictions within the meaning of the three
strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), two prior serious
felony convictions (Pen. Code, § 667, subd. (a)(1)), and two prior sex crime convictions
(Pen. Code, §§ 667.51, subd. (a), 667.6, subd. (a)). The court also found true the
allegation that defendant served a prior prison term for a sex crime conviction (§667.5,
subd. (a)), and served two prior prison terms for sex crime convictions (§ 667.6, subd.
(b)). The court found true the allegation that defendant served two prior prison terms (§
667.5, subd. (b)), but granted the prosecutor’s motion to dismiss those findings at the
time of sentencing. Defendant was sentenced to state prison for a term of 340-years-to-
life.
        Defendant contends on appeal that the his convictions must be reversed for
improper and prejudicial admission of prior offenses pursuant to Evidence Code section
1108. Defendant further contends his convictions must be reversed because admission of
propensity evidence under Evidence Code section 1108 deprived him of his right to a fair
trial and violated his rights of due process and equal protection. We affirm the judgment.


                                          FACTS


        Cassidy R. was born in 1995 and was 18 years old at the time of trial. When
Cassidy was about five to eight years old, she lived with her aunt Karen R. in Malibu
Canyon. Karen’s boyfriend, defendant, lived at the Malibu house with Cassidy, Karen,
and her children from September 2000 to November 2001. Defendant never disclosed his
prior sexual abuse issues to Karen, and she never witnessed any inappropriate behavior.


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       Karen worked two jobs and often left Cassidy alone with defendant, who was
responsible for putting the children to bed at night. Defendant touched Cassidy
inappropriately on more than two occasions. Cassidy became afraid defendant would
touch her again when she was about to fall asleep at night. Cassidy remembered the
details of only two incidents because they were the worst.
       On one occasion, defendant laid down next to Cassidy as she was falling asleep on
a couch in the living room. Defendant pulled up her T-shirt and touched her chest. He
then pulled down her underwear and rubbed his penis on her vagina and butt. Defendant
told Cassidy to rub his chest, waist, and legs. Cassidy did as defendant directed her. He
placed his hands on her face and grabbed her thighs and moved her into other positions.
Defendant told Cassidy he would hurt Karen if Cassidy said anything about what he had
done. Soon after, Cassidy told Karen that she did not want defendant to put her to bed
anymore. However, Karen brushed her off because she assumed Cassidy just did not
want to go to bed.
       On another occasion, defendant again laid down next to Cassidy as she was falling
asleep on the couch. He rubbed his penis to her vagina and butt on the outside of her
clothing. Defendant told Cassidy to put her hands on his chest and touch him, but she
refused and pulled her hands away. After the incident, defendant did not stay at the
house as often.
       Cassidy testified she knew it was defendant who had molested her because of his
weight and voice. Moreover, there were no other men staying at the house.
       Cassidy told her teacher, Gretchen Booth, that she was molested by defendant.
When she was 14 years old, Cassidy told her mother that defendant had molested her
after her mother’s friend tried to hold her hand and hug and kiss her. Cassidy then
reported the molestation to the police.
       On July 2, 2009, Los Angeles County Sherriff’s Detective Timothy MacLean was
assigned to investigate Cassidy’s molestation claims. Cassidy told the police she
reported the molestation to her sixth grade teacher, Brandy Batz, and later talked to
Booth, who was a counselor at the school.

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       On April 24, 2012, Detective MacLean interviewed defendant. The interview was
recorded and played for the jury at trial. Defendant told Detective McLean that he was
staying at the Malibu house with Karen for three or four nights a week. Defendant said
Cassidy would “rub up” against him while she was naked and come on to him about four
times a month for a six-month period. Defendant said Cassidy “touched [him] all over”
always “during like sunset and night time but not late at night.”
       Defendant showed Detective MacLean where Cassidy grabbed his crotch.
Cassidy would rub her back and buttocks against his crotch. Using his hands, defendant
demonstrated how Cassidy rubbed against him. Defendant touched Cassidy, “but it was
nothing horrible.” Defendant placed his hands in front of Cassidy’s crotch and she
pushed herself against him. Defendant showed his hands to be within an inch of
Cassidy’s vagina, but not touching it. Cassidy touched, poked, and kicked his penis, but
defendant stated that his penis never came out of his shorts. Defendant also showed
Detective MacLean how Cassidy held his hands and guided them to her vagina, but
defendant said he did not “let it get that far.” Defendant would tell Cassidy to get off of
him and to put on her clothes.
       When Cassidy touched him, defendant told her not to do it. A few times, Cassidy
tried to get defendant to touch her, but he put a stop to it. Defendant admitted that he
touched Cassidy’s vagina and butt, but he said he did not do it on purpose. Defendant
denied being aroused by Cassidy rubbing against him, but he was remorseful about it.
Defendant also felt remorse for not handling things better at that time or establishing a
boundary. In defendant’s view, “nothing really happened.”
       Defendant said that Cassidy called him “Chief and Daddy.” Defendant thought
Cassidy was looking for a father for affection. Defendant said he told Karen about
Cassidy’s behavior and about his past issues with child abuse because he was afraid of
what had happened with Cassidy and her behavior towards him. And because of his past,
he “always wanted to be supervised.” Defendant told Detective MacLean that it was
Cassidy who said not to tell or say anything about the incidents. Defendant did not get
close to Cassidy because “things” might get started. Defendant said Cassidy’s allegations

                                             4
against him were lies and that she was confused. He again reiterated that nothing serious
happened, only some inappropriate behavior.


Evidence of Prior Sexual Offenses


       Guadalupe S. was seven or eight years old in 1975, living with her sister.
Defendant and Guadalupe’s sister were dating, and he frequently came over the house.
Defendant would touch Guadalupe inappropriately whenever he was at the house. While
Guadalupe slept, she would wake up and feel defendant staring at her, touching her
blanket. Defendant would lift up the blankets and pull down her pajamas and underwear.
He touched Guadalupe’s vagina and laid on top of her, chest to chest, and she would be
unable to breath. Guadalupe was scared and did not want to go to sleep at night, nor did
she want to be in the same house as defendant.
       On one occasion, Guadalupe was watching television in a bedroom when
defendant laid on top of her and touched her underwear. That night, Guadalupe was
taken to the hospital by a police officer where she was examined. Defendant was arrested
shortly thereafter.
       In 1991, Margaret R. was 11 years old and living with her mother, who was dating
defendant. Defendant touched Margaret inappropriately on several occasions. On one
occasion, defendant took Margaret to McDonald’s and then to his house. Margaret fell
asleep in the living room and awoke to defendant touching her chest, stomach, and back.
He touched Margaret over her clothes and then under her shirt. She tried to move away,
but defendant did not stop. On another occasion, Margaret and defendant went to the
movies and came back to the house. Margaret and her three-year-old sister were alone
with defendant at the house. Margaret was sitting on the couch in the living room when
defendant started to touch her chest. She got up to get away and went to her bedroom she
shares with her sister. Defendant followed her into the bedroom. Margaret was on the
bed when defendant started touching her vagina with his hand over her underwear.


                                            5
       Margaret told her mother what defendant did to her. However, Margaret’s mother
did not help her and defendant continued to touch her. Eventually, her mother stopped
dating defendant and Margaret did not see him again. Later, Margaret told the police
what happened and received help.


Defense


       Batz testified that Cassidy did not disclose to her that she was molested. Batz was
mandated to report any allegation of molestation. The school’s policy was to contact the
Department of Children and Family Services and then inform the principle. If Cassidy
had disclosed something that would indicate that she needed help, Batz would have
referred her to a counselor. In 2007, Booth was a special education teacher, not a
counselor. Liam Joyce was Cassidy’s principal from April of 2002 to August of 2010.
Joyce was unaware that Cassidy had made an allegation of child molestation.


                                     DISCUSSION


       Defendant contends the trial court committed error under Evidence Code section
1108 in admitting his prior sexual misconduct with Guadalupe and Margaret. He further
contends admission of his prior acts of child molestation was unduly prejudicial under
Evidence Code section 352. We find no abuse of discretion and hold the evidence was
properly admitted.
       Evidence Code section 1108 provides for admission of evidence of defendant’s
commission of another sex offense in a prosecution for enumerated offenses, including
those charged in the instant case. (Evid. Code, § 1108, subds. (a) and (d).) Evidence
offered pursuant to Evidence Code section 1108 is subject to exclusion under Evidence
Code section 352. (Id., subd. (a).) Accordingly, evidence of other sexual offenses cannot
be used in cases where its probative value is substantially outweighed by the possibility
that it will consume an undue amount of time or create a substantial danger of undue

                                             6
prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352.) This
determination is entrusted to the sound discretion of the trial judge who is in the best
position to evaluate the evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 907, 916-
919; People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
       “By reason of [Evidence Code] 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 admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
       The trial court conducted a pretrial hearing on the issue of the admissibility of
defendant’s prior offenses against four victims—Guadalupe, Margaret, Paula R., and
Sylvia V. The prosecutor outlined the evidence she proposed to introduce under
Evidence Code sections 1101, subdivision (b),1 and 1108. Defendant objected on the
grounds that the prior sexual abuse evidence was not sufficiently similar to be probative
in this case, it was unduly prejudicial pursuant to Evidence Code section 352, and it
violated his right to due process under the Fourteenth Amendment.
       In determining that the testimony of Guadalupe and Margaret was admissible, the
trial court emphasized that Cassidy’s credibility is a material issue because of the gap

       1 Evidence Code section 1101, subdivision (b) permits the introduction of
evidence that “a person committed a crime, civil wrong or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . .) other than his or her disposition to commit
such an act.”

                                              7
between the alleged incidents of sexual abuse and reporting the abuse to the police. The
court found that the prior and current offenses are substantially similar because they
demonstrate a pattern in which defendant dates the victim’s family member and uses that
relationship to gain immediate or ongoing access to the victim. The court also found that
the probative value of the prior offenses outweighed the prejudicial impact. The prior
offenses were not “factually dissimilar to the extent that it would simply be used . . . to
inflame the jury and to unduly prejudice the defendant.” In an exercise of discretion, the
court only admitted testimony from Guadalupe and Margaret, and excluded the testimony
from Sylvia and Paula. The court excluded defendant’s conduct with Sylvia because the
prosecutor failed to establish that Sylvia would testify at trial. Paula’s testimony was
excluded because it was unlike the other prior offenses, would be cumulative and
consume an undue amount of court time.
       The testimony of Guadalupe and Margaret was not excludable under Evidence
Code section 352 on the basis it consumed an undue amount of time. The trial testimony
regarding the prior two incidents consisted of approximately 23 pages of transcript. (See,
e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 706 [testimony, which consisted of
97 pages of reporter’s transcript, was not unnecessarily time consuming]; People v.
Frazier (2001) 89 Cal.App.4th 30, 42 [evidence of uncharged offense that consumed 27
percent of trial transcript did not dwarf the trial of the current offense as to unfairly
prejudice the defendant].) In the one instance in which the court determined there would
be an undue consumption of time, involving proposed testimony by Paula, the court
exercised its discretion under Evidence Code section 352 to preclude the testimony.
       Other legitimate considerations favored admission of the prior offenses. The
offenses are not remote in time, although “[n]o specific time limits have been established
for determining when an uncharged offense is so remote as to be inadmissible.
[Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 284 [30-year-old prior sexual
offenses not remote]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [23-year-old
rape conviction not remote].) The gap in time between Guadalupe and Margaret was due
to the court’s exclusion of the two other victims, Paula and Sylvia. Paula’s sexual abuse

                                               8
occurred in 1981 and then Sylvia’s abuse occurred from 1982 to 1987. In addition,
defendant spent most of the intervening years in prison.2 Moreover, defendant does not
dispute that he committed the prior offenses against Guadalupe and Margaret, which
occurred in 1975 and 1991, respectively.
       The jury was instructed on the proper use of evidence of prior offenses. The jury
was instructed on reasonable doubt (CALCRIM No. 220), evidence of an uncharged sex
offense (CALCRIM No. 1191), and that the prosecution was required to prove each
element of the charged offenses (CALCRIM No. 1110). These instructions eliminated
the risk defendant would be convicted based on his conduct in the prior offenses by
properly focusing the jury on the requirement that each element of the charged offense
must be proven beyond a reasonable doubt. (See People v. Frazier, supra, 89
Cal.App.4th at p. 42.)
       The record establishes the trial court carefully considered the evidence, was
familiar with the applicable legal principles, and made a reasoned decision. Defendant
has failed to establish that the court acted arbitrarily or beyond the bounds of reason. To
the contrary, the court’s ruling is an unassailable exercise of judicial discretion.
       Defendant unsuccessfully attempts to analogize this case to People v. Harris
(1998) 60 Cal.App.4th 727 (Harris), to support his contention that the prior offenses
would impermissibly inflame the jury when offered to support Cassidy’s poor credibility.
The Harris court reversed a trial court’s ruling admitting evidence of a prior offense on
the basis that the defendant’s prior crimes were “inflammatory in the extreme.” In the
charged incidents in Harris, “at worst defendant licked and fondled an incapacitated
woman and a former sexual partner, both of whom were thereafter on speaking terms
with him.” (Id. at p. 738.) In the uncharged incident in Harris, “[the defendant] entered
[the victim's apartment] at night while she was sleeping, beat her unconscious and used a


       2 In 1987, defendant was convicted of forcible oral copulation (Pen. Code, § 288a,
subd. (c)) and sexual battery (Pen. Code, § 243.4) and sentenced to three years in prison.
In 1993, defendant was convicted of a lewd act against a child (Pen. Code, § 288, subd.
(a)) and sentenced to eight years in state prison.
                                              9
sharp instrument to rip through the muscles from her vagina to her rectum, then stabbed
her in the chest with an ice pick, leaving a portion of the pick inside her. Police found
her beaten unconscious on the floor, bleeding heavily from the vaginal area and bleeding
from the mouth and nose.” (Id. at p. 733.) In stark contrast to this case, the crimes in
Harris were markedly dissimilar, and the horrific nature of the prior offense was
significantly greater than the crimes charged. Here, there is little meaningful distinction
between the facts of the charged and prior offenses, considering the similarities in the age
of the victims, defendant’s relationship with a family member of the victims, and the type
of acts committed against the victims. Defendant acknowledges in his opening brief that
the prior offenses involved girls who had fallen asleep and awoke to find defendant
touching them, and defendant was dating a family member of each victim. Moreover, the
offenses against Cassidy were more egregious than the prior acts in that defendant
escalated to using his penis to rub Cassidy’s vagina and butt as opposed to defendant
using his own hands in the incidents involving Guadalupe and Margaret. The court did
not abuse its discretion in determining the two prior offenses were not impermissibly
inflammatory.
       Finally, defendant asserts Evidence Code section 1108 inherently denies due
process of law and a fair trial and violates his equal protection rights under the
Constitution. We are bound by our Supreme Court’s rulings on these issues and therefore
reject his arguments. (People v. Falsetta, supra, 21 Cal.4th at pp. 915, 918 [rejecting due
process challenge to Evidence Code section 1108 and noting with approval rejection of
equal protection challenge in People v. Fitch, supra, 55 Cal.App.4th at pp. 184-185];
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To the extent
defendant relies on Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), revd.
on other grounds sub nom. Woodford v. Garceau (2003) 538 U.S. 202, we have two
observations. First, Garceau did not involve, and did not discuss, the constitutionality of
Evidence Code section 1108. Garceau was a murder case, not a child molestation case,
and did not address the propriety of a statute allowing for admission of prior sex acts to
prove propensity or disposition. Considering the unique nature of child sexual assault

                                             10
cases, we consider the discussion in Garceau inapposite to the issues raised by defendant.
Second, as a decision of an intermediate federal court, Garceau is not binding upon the
California courts. (People v. Bradley (1969) 1 Cal.3d 80, 86.) In light of our Supreme
Court precedent, we see no reason to revisit the due process and equal protection issues
raised by defendant. (People v. Hill (2001) 86 Cal.App.4th 273, 279.)


                                     DISPOSITION


      The judgment is affirmed.




             KRIEGLER, J.


We concur:




             TURNER, P. J.




             MINK, J.*




      *  Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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