Filed 3/26/15 P. v. Leyva CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B257337

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA129975)
         v.

JESUS ALBERTO LEYVA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert J. Higa, Judge. Affirmed.

         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline and Nathan
Guttman, for Plaintiff and Respondent.


                                          _______________________
       A jury convicted defendant Jesus Alberto Leyva of sexually abusing his 10-year-
old daughter over the course of several years.1 On appeal, he contends it was error to
admit evidence of other sex offenses of which he was previously convicted. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

A.     People’s Case

       Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that S. L. was born in January 2001.
At all relevant times, S. lived with mother and defendant in the home of paternal
grandmother. Defendant disciplined S. by hitting her on the bottom with a belt, which
sometimes left marks. On about four occasions, S. saw defendant hit her mother in the
stomach and face with his hands.
       S. was 10 years old when she started the fifth grade and 11 years old when she
completed it. Sometime before Christmas break that year, defendant entered S.’s
bedroom during the night, while everyone else in the house was asleep. He instructed her
to pull down her pants, then pulled down his own pants and told S. to hold his penis in
her hand; next, defendant made S. orally copulate him. Defendant did the same thing
about once a week while S. was in the fifth, sixth and the first-half of the seventh grades.
Usually, the abuse occurred in her bedroom, but occasionally in the garage or the
computer room. If it happened during the day, it was when mother and paternal
grandmother were at work. On two occasions, defendant showed S. videos of women
orally copulating men and told S. that was how she should be doing it. On three
occasions, defendant threatened to hurt S. and her mother if she ever told anyone what
defendant was doing to her. When S. tried to resist defendant, he hit her with a belt.


1      Defendant was charged by information with oral copulation of a child under 10
(Pen. Code, § 288,7, subd. (b)) (counts 1, 2, 3, 4); aggravated sexual assault of a child—
oral copulation (Pen. Code, § 269, subd. (a)(4)) (counts 5, 6, 7, 8, 9, 10, 11, 12, 13),
aggravated sexual assault of a child – sexual penetration (Pen. Code, § 269, subd. (a)(5))
(counts 14, 15). He was convicted on all counts.

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When S. was in the sixth grade, defendant began penetrating her with his finger (on
cross-examination, S. testified this occurred for the first time when she was still in the
fifth grade). Eventually, S. told paternal grandmother what defendant was doing to her.
Paternal grandmother began taking S. with her when she left the house. About a week
later, after S. discovered that paternal grandmother was going to move out of the house,
she wrote a note to her mother telling her about the abuse. S. subsequently talked to
police officers and was examined at a hospital.
       Forensic Nurse Jan Hare examined S. on May 1, 2013. S. told Hare that defendant
forced her to orally copulate him between 25 and 50 times. S. also told Hare that paternal
grandmother warned S. she would be sent to foster care if she told anyone what had
happened. S.’s mother told Hare the abuse occurred between October 2011 and March
2013. Hare’s physical examination of S. resulted in no specific findings, which Hare
testified is not unusual when the examination occurs some time after the alleged assault.
       Pursuant to Evidence Code section 1108, subdivision (a), the People introduced
evidence that in June 2001, defendant suffered prior convictions for sexual penetration
and oral copulation of an intoxicated person (Pen. Code, §§ 289, subd. (e); 288,
subd. (a)(1)), for which he was sentenced to six years in prison.2 The victim, Crystal A.,
testified that while attending a work-related Christmas party in December 2000, Crystal
went to a location where she drank a beverage. The next thing Crystal was aware of was
defendant standing at the foot of a bed on which Crystal was lying nude; Crystal felt
drugged and had no memory of what had happened between the time she drank the
beverage and the time she found herself lying on the bed. When Crystal asked defendant
for help, he got on top of her and forced her to orally copulate him. Crystal was crying
when she told him to stop and tried to push him away, but defendant overpowered her.
Defendant next raped her and sexually assaulted her with something like a glass bottle.
Later, defendant took Crystal’s driver’s license and drove her to a location a few houses
away from her home. While in the parked car, he tried to force Crystal to orally copulate

2      All undesignated statutory references are to the Evidence Code.

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him again, but she successfully resisted. Defendant told Crystal he would come to her
house and kill her if she told anyone what had happened.

B.     Defense Case

       Defendant testified that he was in prison as a result of the conviction arising out of
the Crystal A. incident when S. was born in 2001. While defendant was still
incarcerated, S. and her mother went to live with paternal grandmother. After he was
paroled, defendant also lived there. Defendant obtained a commercial truck driver’s
license and a full time job. “Other than a few slaps,” defendant never beat S.’s mother.
Defendant admitted hitting S. with a belt for infractions such as “mouthing off” at him
and not doing her homework. Defendant never orally copulated S. and never digitally
penetrated her. Defendant admitted putting Desitin on S.’s vagina to treat a rash when S.
was 12 years old. Defendant speculated S. was falsely accusing him at mother’s behest
because mother wanted to punish defendant for calling off their engagement.
       Defendant denied sexually abusing the prior victim, Crystal A. In his version of
events, they met at a party at which Crystal was drinking but defendant was not because
he was driving. Defendant drove Crystal to his friend’s house, stopping at a liquor store
on the way to purchase two six-packs. When defendant drove Crystal home at about 5
o’clock the next morning, she instructed him to drop her off five houses away from her
own home so that her husband would not see her coming home so late. Asked by defense
counsel whether he gave Crystal any kind of drug that would incapacitate her, defendant
testified: “Not me personally. But the guy–” Defense counsel interjected: “Okay. Let
me stop you right there. The question is only as to your conduct. You can’t testify to
somebody else?”
       On cross-examination, defendant denied that he and two friends took Crystal to
the second house against her will, denied that Crystal did not want to have sex with all
three of them and denied that Crystal did not want them to videotape her doing so. When
Crystal said, “Stop,” he understood her to mean only that the three men should have
intercourse with her one at a time, not all three at once. Defendant pled no contest to

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assault charges in exchange for a six-year sentence because the alternative was a possible
life term for kidnapping. The other two men involved in the incident also pled no
contest.

C.     Rebuttal

       Crystal A. testified that while at the Christmas party, she felt a hard metal object
which she thought was a gun pressed against her side. Defendant and two other men
forced her into a car and took her to another house. When Crystal asked for water, they
gave her a beer. After drinking the beer, she lost consciousness. When she regained
consciousness, she was naked and alone in a room. A man, not defendant, entered the
room and raped her. A second man did the same thing. Defendant was the third man to
enter the room and rape her. The rapes were recorded by a video camera. Crystal did not
agree to have sex with any of the three men and did not agree to be videotaped. She felt
drugged, not intoxicated.

                                      DISCUSSION

A.     Admission of the Crystal A. Evidence Was Not Error

       Defendant contends the trial court prejudicially erred in admitting evidence of the
assault on Crystal A. over defense objection. Acknowledging that evidence of an
uncharged sexual offense may be admissible under section 1108, defendant argues the
challenged evidence was nevertheless inadmissible under section 352 because
kidnapping, drugging and gang-raping a stranger is more heinous than sexually abusing a
child-relative and was therefore more prejudicial than probative. We disagree.

       1.     Standard of Review

       We review the trial court’s decision to admit or exclude evidence under
sections 1108 and 352 for abuse of discretion. (People v. Jandres (2014)
226 Cal.App.4th 340, 353.) The exercise of such discretion “ ‘must not be disturbed on


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appeal except on a showing that [it was] exercised . . . in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’
[Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see § 353
[erroneous admission of evidence may be the basis of a reversal only if the error resulted
in a miscarriage of justice].)

       2.      The Crystal A. Evidence Was Admissible Under Sections 1108 and 352

       Generally, evidence of past conduct (i.e., an uncharged crime) is not admissible to
prove a person’s conduct on a specified occasion. (§ 1101, subd. (a).) Section 1108
creates an exception to that general rule for a criminal defendant accused of a sexual
offense: “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).) As relevant here, section 352 gives the trial court discretion to
exclude evidence if its probative value is “substantially outweighed by the probability
that its admission will . . . create substantial danger of undue prejudice . . . .”
       The relevant factors to consider in deciding whether evidence of an uncharged
sexual offense is admissible under section 1108 and not inadmissible under section 352
include the nature of the challenged evidence, its “ ‘ “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.” [Citation.]’ ”
(People v. Avila (2014) 59 Cal.4th 496, 515; see People v. Hendrix (2013)
214 Cal.App.4th 216, 238.)
       In Avila, the defendant was charged with kidnapping, sexually abusing and
murdering a five year old girl in 2002. Over defense objection, the prosecutor presented

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evidence that the defendant had sexually molested two seven year olds in 1997 (the
defendant was charged but acquitted of all charges) and an 11 year old in 1999 (the child
apparently came forward after the 2002 murder). The appellate court found no abuse of
discretion in the admission of the prior sexual offense evidence. It reasoned that such
evidence was extremely probative: “They were sex crimes against young girls,
suggesting defendant was a pedophile who committed the crimes against the young
female victim in this case. The evidence strongly corroborated the other evidence of
defendant’s guilt of the charged offenses. This circumstance brings the evidence
precisely within the primary purpose behind Evidence Code section 1108.” (59 Cal.4th
at p. 516.) The Avila court found further that the other crimes “were neither remote nor
particularly inflammatory when compared with the facts of the charged crime.
Additionally, although defendant had previously been acquitted of the crimes against two
of the girls, the evidence at this trial that he committed those crimes was much stronger.
A third girl came forward with similar testimony. Moreover, [evidence of defendant’s
incriminating statements to his sister] strengthened the force of the evidence. Given all
of the circumstances, the court acted within its discretion in admitting the evidence.” (Id.
at p. 516.)
       We find no abuse of discretion in the trial court’s finding that the Crystal A.
evidence was admissible under section 1108 and not more prejudicial than probative
within the meaning of section 352. Inasmuch as the convictions arising from the assault
on Crystal followed a plea of no contest, there is a high degree of certainty that those
acts occurred and there is no burden on defendant to defend against those charges.
(People v. Loy (2011) 52 Cal.4th 46, 61 [defendant’s commission of uncharged offense
was established by his conviction].) That defendant claimed he pled guilty to avoid a
possible life term for kidnapping is of little consequence. The prior conviction also
meant that the jury would not be tempted to convict defendant of the charged crime to
punish him for the earlier crime. (Ibid.)
       Although committed against an adult stranger, the acts which comprised the
crimes committed against Crystal A. are not unlike the acts defendant is alleged to have

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committed against S.: forced oral copulation and sexual intercourse. As such, the assault
on Crystal is relevant under section 1108. Contrary to defendant’s assertion, that Crystal
was an adult stranger and the victim in this case was defendant’s own 10-year-old
daughter does not make the facts of the assault on Crystal more heinous than those in this
case. The trial court could have reasonably concluded that ongoing sexual abuse of one’s
own child is more heinous than a sexual assault on an adult stranger. Further, while the
People initially presented the Crystal evidence in a manner which excluded the more
inflammatory details surrounding the offense in accordance with the court’s pre-trial
ruling, defendant’s own testimony opened the door to admitting further details. In
particular, defendant’s attempt to portray Crystal as a willing partner allowed the
prosecutor to introduce evidence that defendant was one of three men who forced Crystal
into a car at apparent gun point, drugged her and video-taped themselves gang-raping her.
       Nor do we find the 2000 assault on Crystal A. too remote to be relevant to the
allegations that defendant sexually abused S. between 2011 and 2013. Defendant was
apparently incarcerated for much of the intervening time.
       Defendant’s reliance on People v. Harris (1998) 60 Cal.App.4th 727, for a
contrary result is unpersuasive. In that case, the defendant was a mental health nurse
convicted of sexually battering two incapacitated and mentally troubled women under his
care by orally copulating one and fondling the other. The appellate court reversed the
convictions, finding prejudicial error in the admission of section 1108 evidence that
defendant committed another sexual offense in 1972. The challenged evidence was that
defendant was convicted of first degree burglary with the infliction of great bodily injury
arising out of the following “sanitized” facts: at about 3:00 a.m. in July 1972, a neighbor
alerted police to strange noises in the apartment next to hers; upon entering the
apartment, the police found a woman, apparently the victim of a rape, lying unconscious
on the floor; the woman was naked from the waist down, her face was swollen and
bloody and there was blood on her vagina; when defendant was found hiding nearby, he
was holding a key ring and had blood on the crotch area of his clothes and on his penis.
The Harris court found this evidence “was inflammatory in the extreme.” (Id. at p. 738.)

                                             8
It explained: “The charged crimes involving a breach of trust and the ‘taking advantage’
of two emotionally and physically vulnerable women are of a significantly different
nature and quality than the violent and perverse attack on a stranger that was described to
the jury. The version that the jury heard, while not as gruesome as the actual incident,
was an incomplete and distorted description of an event that did not actually occur. As
disturbing as the actual incident was, it was at least coherent, while on the other hand, the
crime testified to by the officers must have caused a great deal of speculation as to the
true nature of the crime.” (Ibid.) It also found the fact that all of the victims were
Caucasians in their 20’s or 30’s did not make the 1972 crime similar enough to the
charged offenses to make it probative. (Id. at pp. 740-741.) In addition, it found the 23
years between the uncharged and charged offenses weighed in favor of exclusion. (Id. at
p. 739.)
       Harris is inapposite to this case. First, as we have already discussed, the Crystal
A. evidence was not overly inflammatory compared to the charged crimes. Second, there
are significant similarities between the Crystal A. crimes and the charged crimes: both
crimes involved forced oral copulation and intercourse. Third, the Crystal A. crimes
were not particularly remote in time, especially taking into account that defendant was
incarcerated for much of the intervening time.

B.     Federal Due Process

       Defendant contends he was denied federal due process and equal protection as a
result of the admission of the Crystal A. “propensity evidence” pursuant to section 1108.
While acknowledging the California Supreme Court has affirmed the constitutionality of
section 1108 (see People v. Loy, supra, 52 Cal.4th at pp. 60-61; see also People v.
Falsetta (1999) 21 Cal.4th 903, 915), defendant argues the Loy court’s failure to discuss a
2001 Ninth Circuit case warrants this court reevaluating the issue. But the California
Supreme Court, not this court, is the proper tribunal to reconsider Loy if it considers it
appropriate to do so. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 455.)

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                                DISPOSITION

    The judgment is affirmed.




                                         RUBIN, ACTING P. J.
WE CONCUR:



          FLIER, J.




          GRIMES, J.




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