Filed 7/25/16 P. v. Crespo CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071076
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF156441A)
                   v.

JOSE SALAZAR CRESPO,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Brian M.
McNamara, Judge.
         Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Detjen, J. and Smith, J.
          Appellant Jose Salazar Crespo appeals his conviction on a single count of sexual
penetration with a foreign object while the victim is unconscious (Pen. Code, § 289,
subd. (d)). Appellant contends he was prejudiced when the trial court erroneously
admitted evidence of uncharged sexual misconduct. For the reasons set forth below, we
affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
          Appellant was convicted following a jury trial. At trial, several somewhat
differing versions of the relevant events were recounted. However, given the issues
raised in this appeal, these differences are not material and only a few are specifically
noted below for context.
          On August 9, 2013, the victim, L.S., traveled with her children from Santa Clarita
to Bakersfield for a weekend dentist appointment. Late in the evening on August 9,
2013, the victim met up with her brother-in-law and his wife, G.S. and C.S., planning to
stay at their house overnight.1 G.S. and C.S. were married and living in a three-bedroom
home with appellant and appellant’s teenage son, G.S.’s half-brother, J.S.
          Upon arriving in Bakersfield, the victim, her children, G.S., C.S., and J.S. went to
the home of one of C.S.’s friends to socialize. They watched a movie, talked about
birthday plans, and G.S. and the victim drank some alcohol. The family then returned to
G.S.’s house where they continued socializing and G.S. and the victim continued to
drink. Sometime later, well after midnight, everyone went to bed. The victim slept on
the floor in the living room with her children, while G.S., C.S., and J.S. retired to their
rooms. Appellant, who worked the night shift as a truck driver, was not present.
          At some point in the night, the victim awoke, needing to use the restroom. She
attempted to use the bathroom in the hall, but found it was occupied, so she entered

1      To the extent the primary witnesses in this case share the same surname, they will
be referred to by their first and last initial.

                                                2
appellant’s bedroom to use his restroom. The victim testified appellant was not present
when she entered his room. After using the bathroom, the victim sat on the edge of
appellant’s bed and apparently fell asleep. She awoke to find appellant next to her with
his hand underneath her clothing and his finger in her vagina.
       The victim immediately fled the home with her children, but realized she had left
her wedding ring in G.S. and C.S.’s bedroom. She returned for the ring, informed G.S.
and C.S. of what had happened, and a confrontation between G.S., the victim and
appellant ensued. During that confrontation, appellant allegedly became angry and said,
“She wanted it.”
       Later, in front of the residence, but before the police arrived, appellant and the
victim allegedly continued arguing about the incident. This argument occurred in front of
at least G.S., C.S., and C.S.’s mother, Mary Teresa Palacios, who had arrived, while the
victim’s husband listened on the phone after being called by his wife. The various
accounts of that argument involved appellant stating either: “She wanted it. She wanted
me to touch her,” while making a suggestive hand gesture; she wanted it or she asked for
it; “I did do it but I did it because you wanted it”; “she wanted it”; or “Yeah, I touched
you, but that’s what you wanted; right?”
       At trial, appellant denied touching the victim or making any of the statements
attributed to him. Appellant testified he had arrived home at around 6:00 a.m. to find the
victim sleeping on the living room floor with her children. After saying good morning to
J.S., appellant went to his bedroom and went to bed. Appellant claimed he later awoke to
the feeling of someone caressing his inner leg and genitalia. He realized it was the victim
touching him, told her to leave his room, and went back to sleep. Appellant was later
awoken by G.S. and confronted with the victim’s claims, which appellant denied. When
the victim made statements about appellant’s dead wife he became angry and demanded



                                              3
the victim leave. Appellant then called the police and waited in the house for their
arrival.
       In support of its case, the People called two witnesses to testify regarding
appellant’s past sexual misconduct. Both were sisters of appellant’s deceased wife. The
first, O.S., testified she met appellant when she was either 12 or 13 years old. Between
the ages of 14 and 16 years, O.S. alleged that appellant constantly fondled her buttocks.
These incidents typically occurred inside O.S.’s home when she was left alone with
appellant.
       The second, M.M., testified appellant touched her butt, breasts, and vagina, over
her clothing, from the time she was approximately 10 years old until she was 14 years
old. Some incidents occurred around M.M.’s home, particularly in the bathroom, while
others involved appellant driving M.M. to remote locations. M.M. detailed one incident
where she awoke in bed with a hand being “pushed into her behind.” M.M. recognized
appellant hiding beside her bed when she awoke, causing him to flee. These incidents
stopped when appellant moved away.
       For both witnesses, the incidents occurred sometime in the late 1970’s or early
1980’s and there was no testimony showing they were reported to the police. Aside from
these allegations, there was no evidence introduced showing appellant had any other run-
ins with the law prior to the present charges.
       Based on the inflammatory nature of these allegations, their remoteness in time to
the present charges, and appellant’s otherwise clean record, appellant had sought to
exclude them, along with additional allegations of misconduct and the testimony of a
third witness, through a motion in limine. After extensive argument and an evidentiary
hearing, the trial court granted appellant’s motion with respect to the third witness and
limited the testimony that could be introduced during trial to what was noted above.



                                                 4
       Following appellant’s conviction, he was sentenced to six years in prison. This
appeal timely followed.
                                       DISCUSSION
       Appellant contends the prior sexual misconduct evidence introduced at his trial
was more prejudicial than probative and, thus, that the trial court erred when admitting it
under Evidence Code sections 352 and 1108.
Standard of Review and Applicable Law
       “Subject to Evidence Code section 352, Evidence Code section 1108 permits a
jury to consider prior incidents of sexual misconduct for the purpose of showing a
defendant’s propensity to commit offenses of the same type, and essentially allowing
such evidence to be used in determining whether the defendant is guilty of the current
sexual offense charge.” (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096
(Miramontes).) “[B]ecause Evidence Code section 1108 conditions the introduction of
uncharged sexual misconduct or offense evidence upon whether it is admissible under
Evidence Code section 352, any valid objection to such evidence, as well as any
derivative due process claim, necessarily depends on whether the trial court sufficiently
and properly evaluated the proffered evidence under that section.” (Id. at p. 1097.)
       In analyzing proposed evidence of prior sexual misconduct under Evidence Code
sections 352 and 1108 for admissibility, “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 (1999) 21 Cal.4th 903, 917.) “ ‘A trial

                                              5
court “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.” ’ ” (People v. Robertson (2012) 208 Cal.App.4th 965, 991 (Robertson).)
       “A challenge to admission of prior sexual misconduct under Evidence Code
sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and
will be reversed ‘only if the court’s ruling was “arbitrary, whimsical, or capricious as a
matter of law.” ’ ” (Robertson, supra, 208 Cal.App.4th at p. 991.)
The Trial Court Did Not Abuse Its Discretion
       Appellant argues multiple factors show introduction of the disputed evidence was
an abuse of discretion in this case. Appellant contends the uncharged conduct was so
fundamentally different in nature than the charged offenses, due to the fact it involved the
abuse of children, that it should be found inadmissible under section 1108. Appellant
also contends the uncharged conduct was too remote in time, particularly given
appellant’s clean record between instances, to be admissible. Finally, appellant contends
admission of such inflammatory, uncharged conduct would inevitably distract the jury,
entice them to convict on the uncharged crimes, and place upon defendant the impossible
burden of defending against the claims. We disagree.
       It is not the case that allegations of sexual misconduct against minors are so
different in nature than other incidents of sexual misconduct that they are inadmissible
under Evidence Code section 1108. Indeed, it is well settled that under “Evidence Code
section 1108, subdivision (d)(1)(A) through (F), the prior and charged offenses are
considered sufficiently similar, for admissibility in this matter, if they are both the type of
sexual offenses enumerated there.” (Miramontes, supra, 189 Cal.App.4th at p. 1099.)
Nor are such crimes so inflammatory as to be immediately deemed inadmissible in cases
where crimes against adults are alleged. (Cf. Robertson, supra, 208 Cal.App.4th at

                                               6
p. 972, 988 [evidence of prior crime committed against 17-year-old minor admissible in
case where current victim was adult mother of four].) As there is no challenge to the
qualifying nature of the prior sexual misconduct claims, the court did not err by failing to
exclude the proposed evidence simply on the basis that the prior conduct involved
minors. (See People v. Soto (1998) 64 Cal.App.4th 966, 990 [explaining in context of
similar federal law that “[w]hile there is a danger of unfair prejudice presented by the
‘ “unique stigma” of child sexual abuse,’ this danger is ‘one that all propensity evidence
in such trials presents’ ”].)
       Similarly, the fact that the alleged misconduct occurred roughly 20 years ago is
not a de facto basis for excluding the evidence, even in cases where the defendant has a
clean record between claims. “No specific time limit exists as to when an uncharged
crime is so remote as to be excludable.” (People v. McCurdy (2014) 59 Cal.4th 1063,
1099.) While appellant is correct that the long passage of time and an otherwise clean
record were relevant factors in excluding prior sexual misconduct evidence in People v.
Harris (1998) 60 Cal.App.4th 727 (Harris), those facts were not case determinative and
served as only one factor weighing in favor of exclusion. Notably, in Harris the prior
sexual misconduct, involving a brutal assault to and the desecration of a human body,
was so fundamentally different than the charged conduct that it both lacked any
significant probative value and was inflammatory in the extreme, while the sanitized
version presented to the jury was so incomplete and distorted that it could do little more
than generate speculation. (Id. at p. 733-735, 738-741.)
       Ultimately in these analyses, the question is whether the trial court properly
balanced the probative value of the evidence against the prejudice arising from
admission. Our review of the record does not show an abuse of discretion in this regard.
While appellant argues there was limited probative value to the prior sexual misconduct
evidence, the record supports an alternative conclusion. The prior alleged assaults

                                             7
involved female family members, related by marriage, that were inappropriately touched
when left alone with appellant. These instances shared the common theme of appellant
placing his hand on or in the victim’s private areas, with one occurring while the victim
slept. While differences in age and location existed and were relevant, the similarities in
the general conduct were sufficient for the trial court to find a strong probative value to
the testimony in light of appellant’s initial denial of any improper conduct and later
testimony that the victim in this case was the aggressor.
       In contrast, based on the factual record, the exclusionary factors could rationally
be viewed as either neutral or only slightly in favor of exclusion by the trial court.
Appellant does not argue the uncharged conduct was more inflammatory than the charged
offense or that its introduction generated an undue consumption of time. While the
remoteness in time and appellant’s apparently clean record would weigh against
admission, the similarity between the charged and uncharged conduct could be rationally
deemed to balance out some of the weight of this factor. (People v. Branch (2001)
91 Cal.App.4th 274, 285.) Moreover, while the additional evidence could confuse the
jury, place an additional defense burden on appellant, or generate a desire to punish
appellant for that past conduct, none of these factors appear to weigh heavily in favor of
exclusion, are generally minimized by the high probative value of the evidence, and were
further minimized by the trial court’s proper instructing of the jury on these matters,
which is not challenged on appeal.
       Finally, we are persuaded the trial court engaged in an appropriate analysis which
was neither arbitrary, whimsical, nor capricious. The trial court expressly considered
arguments similar to those appellant raises here, including spending substantial time on
the remoteness and relevance considerations, and placed its reasoning for allowing the
trial testimony on the record. Moreover, the trial court excluded all testimony where
appellant was not clearly identified as the perpetrator, the conduct was not similar in

                                              8
terms of its sexual nature, or the witness did not recount specific facts supporting the
claim at the evidentiary hearing. This resulted in the complete exclusion of one witness
and one allegation of prior conduct where duct tape was used to cover the victim’s eyes
and supports our view that the trial court’s decision was not arbitrary in nature.
Accordingly, we find no abuse of discretion in the trial court’s decision to permit
evidence of past sexual misconduct in this case.
                                      DISPOSITION
       The judgment is affirmed.




                                              9
