Filed 10/31/13 P. v. Castillo CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047652

         v.                                                            (Super. Ct. No. 10NF2857)

JOEY ERNEST CASTILLO,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed.
                   Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff
and Respondent.
              A jury found defendant Joey Ernest Castillo guilty of rape. (Pen. Code,
§ 261, subd. (a)(2).) The court sentenced him to eight years in state prison. He appeals
contending the trial court erred in admitting evidence of an earlier uncharged crime of
attempted sexual assault on an unconscious woman. We conclude there was no error.
Defendant also asks us to review the sealed transcript of a June 11, 2012 hearing, and
determine whether the court, in denying him access to records, denied him his right to
present relevant evidence. We have examined this transcript and find no error. We
therefore affirm the judgment.


                                         FACTS


              Defendant, who was older, drove teenage G.V. and her friend M.H.,
together with three other teenage girls to a party. On the way, he furnished G.V. with
alcoholic beverages. After the party broke up, someone yelled that the police had
arrived, H.M. became separated. Defendant and G.V. walked around the neighborhood,
looking for her. After defendant and G.V. were in a deserted area, defendant pushed
G.V. to the ground, unbuckled her pants and removed one pant leg, her shoes, and
pressed her to the curb holding down her arms and legs. Defendant took off his shorts,
and raped her, leaving bruises on G.V.’s arms, legs, and back.


                                      DISCUSSION


1. The court did not err in admitting evidence of defendant’s prior attempted sexual
assault.
              Over objection, the court admitted evidence that, some six years before the
present crime, defendant was observed in what appeared to be a sexual assault on a



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woman who was passed out on the beach. Defendant claimed he had been trying to save
the woman from drowning. Apparently no charges were filed. As the Attorney General
acknowledges, generally evidence of a person’s character is not admissible to prove
conduct on a specific occasion. (Citing Evid. Code, § 1101, subd. (a); People v. Ewoldt
(1994) 7 Cal.4th 380, 393.) But Evidence Code section 1108 provides an exception to
this rule.
              The court ruled the earlier incident was admissible under Evidence Code
section 1108, subdivision (a), which provides that “[i]n 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.” Evidence Code section 352
provides for the exclusion of evidence that is time consuming, unduly prejudicial,
confusing, or misleading. Whether this statute requires exclusion of the evidence is a
matter within the discretion of the trial court. And our Supreme Court has noted that it
“will not disturb a trial court’s exercise of discretion under Evidence Code section 352
unless it is shown the trial court exercised its discretion ‘“in an arbitrary, capricious or
patently absurd manner.”’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 948,
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
also see People v. Homick (2012) 55 Cal.4th 816, 865.) And, as defendant notes,
“reviewing courts use a deferential standard of review.” (See People v. Pollock (2004)
32 Cal.4th 1153, 1172.)
              Defendant claims the trial court failed to properly consider the appropriate
factors in weighing the prejudicial impact against the probative effect of the evidence of
the uncharged act. Defendant cites two cases in support of this claim: People v. Earle
(2009) 172 Cal.App.4th 372, 396-400 and People v. Harris (1998) 60 Cal.App.4th 727,
738-741. But in both cases, the appellate court held the propensity evidence should not



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have been admitted because the evidence of the prior conduct was too dissimilar from the
conduct at issue. In Earle, the court held that commission of indecent exposure did not
support a propensity to commit a rape. (People v. Earle, supra, 172 Cal.App.4th at pp.
397-398) In Harris, the forcible and violent rape of a stranger did not support a
propensity to commit sexual offenses on acquaintances who were vulnerable because of
their mental health conditions and put up little resistance. (People v. Harris, supra, 60
Cal.App.4th at p. 738.) The evidence here, an attempted sexual assault on an
unconscious woman in the earlier case, does not differ materially from the sexual assault
on a young woman for whom defendant had provided alcoholic beverages.
              The trial court relied on this similarity in stating “the court believes the
facts in both cases are similar. Although the district attorney isn’t asking for it, it
probably would be admissible under [Evidence Code] 1101[, subdivision] (b) to show
intent. The court also considered other factors relevant under section 352: “the prior act
is more probative than prejudicial. It does not inflame the jury because the prior act is
not more offensive than the charged act. It occurred a relatively short period of time
before the charged act, I think about six years. . . . [¶] The prior act is not one that will
inflame or incite the jury in such a way that they could not be fair, and will not confuse,
mislead or distract jurors. And the court believes that it is more probative than
prejudicial and that will be allowed to come in under [Evidence Code section] 1108.”
              Defendant argues that our Supreme Court analysis of the issue in People v.
Falsetta (1999) 21 Cal.4th 903 is flawed because “propensity evidence is, by its nature,
highly prejudicial.” We first note that it is not up to us to disagree with a decision of our
Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Furthermore, defendant misunderstands the nature of the word “prejudice” as used in
Evidence Code section 352. Evidence Code section 1108, in incorporating section 352,
recognizes that there is prejudice but the question is not, is the evidence prejudicial?



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Rather the question to be answered by the trial court is, is the probative value of the
evidence outweighed by the “substantial danger of undue prejudice.”
              Defendant cites People v. Branch (2001) 91 Cal.App.4th 274, 282 for the
proposition that “[i]n making a section 352 decision concerning evidence to be admitted
under section 1108, the court is to weigh the probative value of the evidence against four
factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of
confusion of issues; (3) the remoteness in time of the uncharged offenses; and (4) the
amount of time involved in introducing and refuting the evidence of uncharged offenses.”
As noted in the above quoted statement of the trial court when ruling on the admissibility
of the uncharged offense, the trial court expressly considered the first three of these
factors; the fourth factor was not urged by defendant. We must therefore conclude that
the trial court did exactly what it was required to do in ruling on the admissibility of the
evidence.
              The court also cautioned the jury on how to use the evidence of the
uncharged offense by instructing it with CALCRIM No. 1191, including the statement
that the evidence of the uncharged offense “is not sufficient by itself to prove the
defendant is guilty of rape.” Defendant argues that this was insufficient. However, his
argument is predicated on the proposition that it was error to admit the evidence, an issue
we resolved above.


2. The court did not err in ruling that the sealed hearing of June 11, 2012, did not
disclose evidence relevant to the case.
              We reviewed the sealed transcript of the June 11, 2012 hearing. It does not
disclose the existence of any records or other evidence that, in any way, have any
relevance to the issues herein.




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                                 DISPOSITION


           The judgment is affirmed.




                                           RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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