Filed 5/9/13 P. v. Solis CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B236689

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA118486)
         v.

JOSE M. SOLIS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Michael
A. Cowell, Judge. Affirmed.


         Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Jose M. Solis appeals from his conviction of two counts
of lewd act upon a child under the age of 14. He contends that the trial court was
required to instruct the jury with regard to battery as a lesser included offense. He also
contends that Evidence Code section 1108 violates the United States Constitution, and
that the trial court erred in admitting propensity evidence. We conclude that defendant’s
contentions are without merit and affirm the judgment.
                                     BACKGROUND
Procedural history
       Defendant was charged with two counts of lewd act upon a child under the age of
14, in violation of Penal Code section 288, subdivision (a).1 A jury found defendant
guilty of both counts as charged, and on October 13, 2011, the trial court sentenced him
to a total of six years in prison, comprised of the middle term of six years as to count 1,
plus a concurrent term of six years as to count 2. The trial court awarded 291 days of
presentence custody credit, imposed mandatory fines and fees, and ordered defendant to
submit to HIV testing and provide a DNA sample. Defendant filed a timely notice of
appeal from the judgment.
Prosecution evidence
       Eleven-year-old Emily T. and her older sister Fatima2 testified regarding the
events of December 23, 2010. At approximately 3:00 p.m. when Emily and her two
sisters were home alone while their parents were at work, defendant, their maternal uncle
came to visit. When defendant arrived dinner was being prepared and cheese was
needed. Defendant offered to go to the store and invited Emily to come along. She
happily agreed as she was close to defendant, he was like a second father and she trusted
him. Defendant and Emily went in defendant’s car to the store, although it was just one



1      All further statutory references are to the Penal Code unless otherwise indicated.

2      As Emily’s sisters and parents share a last name, we use only their first names to
avoid confusion and to protect their privacy. No disrespect is intended.

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block away. After defendant bought the cheese, he drove to his house, about two blocks
away, rather than return to the girls’ house.
       Inside the house, defendant took Emily by the arm, placed her on his lap, and told
her that if she had the chills, her breasts would grow. He then kissed her multiple times
on her neck and blew in her ear. He asked whether she had a boyfriend. Defendant then
lifted Emily’s shirt and bra, asked how fast her heart was racing, and touched her left
breast, rubbing it in a circular motion for a minute or two.
       Emily was frightened and felt she could not move. When defendant asked her
whether “she liked it” and whether it felt good, she said “no,” but he continued to rub her
breast. Emily then asked to go to the bathroom and remained there crying for five or six
minutes. She came back out because she felt she had no choice. Defendant again took
her to the couch, put her on his lap, grabbed her breast under her bra and rubbed it in a
circular motion as he had earlier, for a longer period, maybe three minutes. When Emily
finally told him to stop and take her home before her father returned, defendant complied.
       Fatima noticed that defendant and Emily were away longer than it would normally
take to go to the store. As Emily helped Fatima set the table, Fatima noticed that Emily’s
face was pale and her voice was soft and shaky. Emily tugged at Fatima and said
defendant had done something to her. In response Fatima took Emily into the bedroom
where Emily told Fatima what defendant had done. They then sat down to dinner, saying
nothing to their father about what had happened. Fatima and Emily later told their
mother.
       Emily’s frequent asthma attacks caused her to suffer anxiety for which she saw a
therapist. About two weeks after the incident with defendant, Emily and her mother
(Hortensia) told Emily’s therapist about it, and the therapist notified law enforcement.
       Arturo, the girls’ father, testified that defendant visited their home almost daily.
Arturo remembered that on December 23, 2010, he arrived home from work at 4:45 p.m.
and that defendant stayed for dinner. At dinner, defendant and Emily both looked
frightened and defendant’s face was red. Defendant attributed his heightened color to
possible illness, nothing was said about the incident, and dinner conversation was


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otherwise normal. About one month earlier, Arturo observed defendant hugging Emily
against his body and speaking into her ear in a way that made Arturo uncomfortable.
Arturo had noticed that defendant behaved differently with Emily; he was more
affectionate with her than with the other girls and was always “after her.” Arturo spoke
to his wife about his observation and asked her to tell her brother not to hug Emily in that
way, but his wife, though upset, did not believe him.
Defense evidence
       Emily’s therapist, Gloria Cordova, testified that she has been Emily’s therapist
since August 2010. When told about what defendant had done, she called law
enforcement.
       Defendant’s niece, Aracely Morales, testified that she had known defendant since
she was four years old and that he lived with her family for about two years when she
was in high school. Defendant often visited her family and never behaved
inappropriately when she was alone with him. No other family members ever told her
that he acted inappropriately toward them.
       Defendant’s landlord, Victor Reyes (Reyes), testified that defendant was home
installing an outdoor canopy until 3:00 p.m. on December 23, 2010, except for about 10
minutes around 1:00 p.m. when he went to buy beer. Reyes did not see defendant later
that afternoon, because he was working on the other side of the house until 5:00 p.m.
Reyes saw defendant’s wife come home about 6:30 p.m., and then saw the two of them
go to the market.
       Defendant’s sister, Cecelia Morales, testified that she had left her children alone
with defendant on occasion, and they never reported inappropriate behavior.
       Defendant’s wife, Claudia Solis, testified that they had been married six years, had
no children, and defendant had a 15-year-old son who spent weekends and vacations with
them. Defendant often enjoyed spending time with Mrs. Solis’s seven nieces and
nephews, and was always helpful and playful with them. When Mrs. Solis arrived home
from work at 6:30 p.m. on December 23, 2010, she and defendant went to the market.



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                                        DISCUSSION
I. Battery instruction
        Defendant contends that battery is a lesser included offense of committing a lewd
or lascivious act upon the body of a child and that the judgment must be reversed because
the trial court did not instruct the jury, sua sponte, regarding battery.3
        “‘The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.’ [Citations.] ‘That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser.’ [Citations.]” (People v.
Rogers (2006) 39 Cal.4th 826, 866; see also People v. Breverman (1998) 19 Cal.4th 142,
154.)
        Recognizing that there is a split of authority on the question whether battery is a
lesser included offense of committing a lewd or lascivious act upon a child, defendant
urges us to follow People v. Thomas (2007) 146 Cal.App.4th 1278, which held that it is a
lesser included offense. Respondent urges us to follow People v. Santos (1990) 222
Cal.App.3d 723, which held that it is not a lesser included offense.4 We need not take
sides on the issue as even assuming defendant’s position is correct, he has failed to show
that the evidence warranted a jury instruction of battery or that defendant was prejudiced
by its omission.
        Section 288, subdivision (a), is violated by any touching of any part of a child’s
body if committed with the intent to sexually arouse either the defendant or the child.
(People v. Martinez (1995) 11 Cal.4th 434, 442.) Battery under section 242 is any
harmful or offensive touching and requires no intent other than to touch. (People v. Lara

3      The trial court gave counsel the opportunity to request instructions on lesser
included offenses, if any, but there were no requests.

4     The issue is presently before the California Supreme Court in People v. Gray
(2011) 199 Cal.App.4th 167, review granted December 14, 2011, S197749, and People v.
Shockley (2010) 190 Cal.App.4th 896, review granted March 16, 2011, S189462.

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(1996) 44 Cal.App.4th 102, 107.) Defendant contends that there was sufficient evidence
from which the jury could find that there was no intent to sexually arouse either
defendant or the child, and thus the offensive touching was merely battery. He argues
that because Emily suffered from severe asthma and had an “anxiety disorder,” and
because he asked her whether her heart was racing before touching her “breast area,” the
jury could have found that he was merely concerned for her health and attempting to
comfort her.
       At most, defendant’s argument demonstrates that anyone who knew Emily would
be concerned about her health; but the evidence fails to suggest that defendant had any
intent to comfort her at that particular moment. The mere possibility that a jury might
find that a defendant harbored a certain mental state, without direct or circumstantial
evidence to support such a finding, is insufficient to warrant an instruction. (People v.
Sakarias (2000) 22 Cal.4th 596, 620.) “Speculation is an insufficient basis upon which to
require the trial court to give an instruction on a lesser included offense.” (People v.
Wilson (1992) 3 Cal.4th 926, 942.)
       There was no direct or circumstantial evidence that defendant touched Emily in
any nonsexual comforting manner. There was no evidence that Emily had an anxiety
disorder or evidence defining such a condition; there was no evidence to suggest that
Emily was having an asthma or anxiety attack or even that her heart was racing during
the incident; and there was no evidence that defendant merely touched the area near her
breast. Moreover, had Emily shown signs of an asthma or anxiety attack, defendant
would have no reason to take her to his house, as the store was closer to Emily’s home
than his. Finally, had defendant intended only to comfort Emily, he would have had no
reason to place his hand under her shirt and bra to determine whether her heart was
racing; nor would he have had any reason to kiss her neck, blow into her ear, tell her
about the effect of cold on breasts, or ask her about boyfriends. Touching a child in this
manner provides ample evidence of the requisite intent under section 288, subdivision
(a). (See People v. Martinez, supra, 11 Cal.4th at pp. 444, 447.) Defendant does not
argue otherwise and points to no evidence that he touched Emily in some other manner.


                                              6
Rather, the defense theory was that defendant was home all day and evening December
23, 2010, and that the events were fabricated.
       We conclude that the trial court did not err in omitting a battery instruction;
however, assuming that the trial court was required to give a battery instruction, the
evidence of Emily’s frequent illness and defendant’s speculative argument fail to show a
reasonable probability that its absence contributed to the verdict or even a reasonable
doubt whether it did so. Any error was thus harmless under the standard of either People
v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24.
II. Evidence Code section 1108
       Defendant contends that the trial court erred in admitting Arturo’s testimony
regarding the prior hugging incident, and that the error resulted in a denial of his federal
constitutional rights to due process and equal protection. He first contends that Evidence
Code section 1108 is unconstitutional on its face. Defendant acknowledges that the
California Supreme Court rejected such a challenge in People v. Falsetta (1999) 21
Cal.4th 903, 913-922 (Falsetta), and he concedes that we are bound by that holding. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nevertheless
asks that we find that Falsetta was wrongly decided. We decline to do so and
accordingly reject defendant’s argument that Evidence Code section 1108 on its face
violates due process.
       Defendant next contends that Evidence Code section 1108 was unconstitutional as
applied to him. Respondent correctly points out that because defendant did not raise a
constitutional claim below, he has forfeited his challenge on appeal. A challenge to the
admissibility of evidence is generally not cognizable on appeal in the absence of a
specific and timely objection in the trial court on the ground urged on appeal. (Evid.
Code, § 353.) An objection on one ground does not preserve a challenge based upon a
different ground, including the claim that the admission of certain evidence violated the
defendant’s right to due process under the federal constitution. (People v. Partida (2005)
37 Cal.4th 428, 434-435 (Partida).) “A party cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct.” (Id. at p. 435.)


                                              7
       On the other hand, the objection made in the trial court may be sufficient to
preserve a federal due process claim where the due process claim is merely “an additional
legal consequence of the asserted [state] error . . . .” (Partida, supra, 37 Cal.4th at p.
438.) Thus, defendant’s due process claim is cognizable on appeal only if and when he
demonstrates that the trial court erred in admitting the evidence over the proper objection
actually made below. (People v. Thornton (2007) 41 Cal.4th 391, 443-444; Partida,
supra, at pp. 438-439.)
       Because we conclude in the next section that the trial court did not abuse its
discretion in admitting Arturo’s testimony, and defendant has not demonstrated error
under state law, we also conclude that his federal due process claim must also fail. (See
People v. Thornton, supra, 41 Cal.4th at pp. 443-444; Partida, supra, 37 Cal.4th at pp.
438-439.)
III. Evidence Code section 352
       Defendant contends that the trial court abused its discretion under Evidence Code
section 352 in admitting Arturo’s testimony regarding his observation of defendant
inappropriately hugging Emily. Prior to jury selection, when the trial court heard all
motions in limine, defendant objected to the proposed testimony as prejudicial propensity
evidence, vague as to when the incident occurred, and a “distraction.” The prosecutor
successfully argued that the testimony was admissible to show intent5 and that it was
admissible under Evidence Code section 1108.
       “We apply the deferential abuse of discretion standard when reviewing a trial
court’s ruling under Evidence Code section 352. [Citation.]” (People v. Kipp (2001) 26
Cal.4th 1100, 1121.) Under that standard, the trial court’s “discretion must not be
disturbed on appeal except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]” (People v. Jordan (1986) 42 Cal.3d 308, 316.) It is the appellant’s
burden to demonstrate that the trial court’s decision was irrational, arbitrary, or not

5      See Evidence Code section 1101, subdivision (b).


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“‘grounded in reasoned judgment and guided by legal principles and policies appropriate
to the particular matter at issue.’ [Citation.]” (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 977.)
       Evidence Code section 352 allows the trial court, in its discretion to “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.” Defendant does
not make clear which of these grounds justified excluding Arturo’s testimony at the time
of the trial court’s ruling. He does note that later, at the jury instruction conference, the
trial court made the comment that Arturo’s testimony was “slight” evidence of a prior
sexual offense, but sufficient to justify instructing the jury with CALJIC No. 2.50.01.6 In
essence, defendant contends that in hindsight, Arturo’s testimony had little probative
value and prejudiced defendant by showing that he had a propensity to commit acts of
sexual misconduct against Emily.
       In evaluating whether the trial court abused its discretion, “[w]e review the
correctness of the trial court’s ruling at the time it was made, . . . and not by reference to
evidence produced at a later date. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701,
739; see also People v. Hardy (1992) 2 Cal.4th 86, 167.) And we review only those
issues properly raised in the trial court. (Evid. Code § 353; People v. Kirkpatrick (1994)
7 Cal.4th 988, 1014.) During the hearing on the motions on in limine, defense counsel
did not invoke Evidence Code section 352, nor did he claim that Arturo’s testimony
would cause undue prejudice or that the potential prejudice would outweigh its probative
value. He stated: I would object . . . as it would be prejudicial . . . to the jury. I don’t
know when that happened. It’s vague . . . it’s going to be prejudicial. We are focused on
this one act. I know they are trying to say there’s a pattern here. My client has a
propensity for this, but he doesn’t. And he has no record. I think it’s going to be a

6     CALJIC No. 2.50.01 instructs that a prior sexual offense, if found to be true by a
preponderance of the evidence, is one fact the jury may consider, along with the
remaining evidence, to infer guilt.

                                               9
distraction, your Honor.” Had defendant’s objection been sufficient to require the trial
court to weigh the probative value of the testimony against its probable prejudicial effect,
we would nevertheless find no abuse of discretion.
       Defendant contends that Arturo’s testimony was not probative of his propensity to
commit sex crimes, as defendant was never charged with a crime due to his hugging
Emily. We disagree. Given the defense theory that Emily was not credible, that
Hortensia and Fatima did not believe her, that they needed confirmation from the
therapist, and that the incident never happened, Arturo’s observations were important
corroboration of Emily’s account by showing defendant’s propensity to behave in a
sexual manner toward her.
       In any event, the prosecutor offered the testimony both as propensity evidence,
and as evidence of intent, which is an essential element of section 288, subdivision (a).
(See People v. Martinez, supra, 11 Cal.4th at p. 442.) Defendant has extensively argued
that the evidence suggested an innocent intent to comfort an ill and anxious child. Thus,
as respondent notes and as defendant’s arguments regarding battery demonstrate,
defendant’s intent was an important issue. However, defendant makes no claim that the
evidence was insufficiently probative of intent.
       Indeed, defendant has not demonstrated or even argued that the potential for undue
prejudice outweighed the probative value of Arturo’s testimony. He merely argues
(again, in hindsight) that the evidence was inflammatory and allowed the jury to
disregard his “strong” alibi defense. It is unlikely that Arturo’s testimony caused the jury
to reject defendant’s alibi claim, particularly since defendant’s landlord admitted he was
unable to see defendant between 3:00 p.m. and the time his wife arrived home at 6:30
p.m. However, if Arturo’s testimony did have the effect of countering defendant’s alibi
defense, we see nothing improper in its use for that purpose. Evidence Code section 352
is not designed to exclude evidence simply because it might damage the defense. (See
People v. Scott (2011) 52 Cal.4th 452, 490-491; People v. Karis (1988) 46 Cal.3d 612,
638.) This sort of prejudice is inherent in all propensity evidence and does not render it
inadmissible. (See People v. Soto (1998) 64 Cal.App.4th 966, 992.)


                                            10
       Defendant’s arguments also fail to demonstrate that the admission of Arturo’s
testimony resulted in a miscarriage of justice. Under the test of People v. Watson, “[t]he
reviewing court must ask whether it is reasonably probable the verdict would have been
more favorable to the defendant absent the error. [Citations.]” (Partida, supra, 37
Cal.4th at p. 439; see Evid. Code, § 353; Cal. Const., art. VI, § 13.) Defendant contends
that Arturo’s testimony materially contributed to the verdict; however, he paradoxically
argues that the evidence was too “slight” to prove defendant’s propensity to engage in
sexual misconduct, and that other evidence demonstrated that Arturo may have
overreacted to what was really an innocent hug.7 In essence, defendant contends that
weak, easily contradicted testimony “unfairly tipped the scales against him.” Rather,
Arturo’s testimony could not have had much effect on the outcome.
       There was no reasonable likelihood of a better outcome for defendant without
Arturo’s observations. As respondent demonstrates, Emily’s description of defendant’s
erotic behavior provided overwhelming evidence of an intent to arouse himself or the
child: kissing her neck; blowing in her ear; rubbing her breast under her bra; telling her
that the chills would make her breasts grow; asking whether she had a boyfriend; and
asking whether she liked what he was doing. Emily’s account was corroborated by the
testimony of Fatima and Arturo regarding their observations of the demeanors and
behavior of Emily and defendant after they returned from the store and during dinner.
       We also agree with respondent that the trial court’s instructions limiting the use of
the evidence dispelled any prejudice. Included in the charge were CALJIC Nos. 2.20,
2.24, 2.50.01, 2.50.2, and 2.81. These instructions informed the jury how to evaluate the
credibility of witnesses and determine the weight to give their testimony, what inferences
may be drawn from character evidence, and how to evaluate evidence of a prior sexual
offense. The trial court “cautioned and reminded” the jury that it must not consider

7       Defendant argues that Arturo was “a harsh man who ruled his family with an iron
fist. He relies in part on Hortensia’s two-week delay in telling Arturo about the incident
due to fear of how he might react, and in part on Arturo’s arrest for domestic violence
after slapping his wife during an argument. The evidence of Arturo’s arrest and the
precipitating events were excluded by the trial court.

                                             11
evidence of a prior sexual offense unless it found by a preponderance of the evidence that
defendant committed it, and the court further instructed “[B]efore a defendant can be
found guilty of any crime charged in this trial the evidence as a whole must persuade you
beyond a reasonable doubt that the defendant is guilty of that crime.” The trial court also
instructed the jury with CALJIC No. 2.90 regarding the presumption of innocence and
the prosecution’s burden to prove guilt beyond a reasonable doubt. We presume the
jurors were capable of understanding and applying the court’s instructions, and that they
followed them. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
       In sum, defendant has failed to demonstrate that the trial court acted arbitrarily or
capriciously, that the ruling was not grounded in reasoned judgment or guided by
appropriate legal principles, or that the ruling resulted in a miscarriage of justice. (See
People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977; People v. Jordan, supra,
42 Cal.3d at p. 316.) We conclude that the trial court did not abuse its discretion in
admitting Arturo’s testimony.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                  ____________________________, J.
                                                  CHAVEZ

We concur:


____________________________, P. J.
BOREN


____________________________, J.*
FERNS

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


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