Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06NF0964, Gregg L. Prickett, Judge.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Alvaro Carrillo Gomez of 20 counts of sexual misconduct involving his two nieces, “Jane Doe #1” and “Jane Doe #2.” The court sentenced him to a total of 109 years. He raises two issues in his appeal: the court erred in admitting evidence of other crimes committed against the victims’ sister and count six is barred by limitations. The Attorney General concedes the latter and we will reverse as to that count and order a correction of the abstract of judgment. The admission of evidence of other sexual crimes was authorized by statute and we affirm the judgment as modified.
FACTS
Defendant is the victims’ uncle and lived with them all their lives. Both victims recanted at trial and testimony of social workers and police officers who spoke with the victims at various times before the trial were admitted. In these statements the victims related a long course of sexual abuse by defendant.
The prosecution also called Joanna R., the victims’ older sister. She lived with the family between ages 4 and 17. Joanna denied having told the officer who interviewed her at her house that her sisters complained of defendant’s inappropriate conduct or that defendant had ever done anything of a sexual nature to her. She testified that a week or so later she was interviewed at the police station by Officer Amy Whitlock. She denied having told Whitlock she had been molested by her uncle or that her sisters had complained about being molested by him.
Officer Shane Carringer testified that he had talked to Joanna in her bedroom. Joanna acknowledged that her sister (the older victim) had told her about being abused by defendant. She also had talked to defendant who admitted the inappropriate touching. Joanna told Carringer that she thereupon decided to move back home to protect her sisters. Joanna also stated that she herself had been molested by defendant, starting when she was about eight or nine years old. Joanna knew about an investigation that had taken place at the time but did not know the outcome. Carringer confirmed that there was a social services report made at the time.
Officer Whitlock testified that she interviewed Joanna at the police station, a little over a month after defendant was arrested. The interview was videotaped. The transcript of the interview discloses that although Joanna was reluctant to be involved she acknowledged that defendant had molested her, “but that was a long time ago.” She expressed the opinion that defendant should stay in jail “as long as he probably can,” but refused to give details of her being abused, stating, “I really don’t want to get into it. I left that a long time ago.”
DISUSSION
1. The court did not err in admitting evidence defendant had abused Joanna.
Defendant contends that admission of evidence he abused Joanna when she was young violated his right to due process and a fair trial. We disagree.
Under Evidence Code section 1108, subdivision (a) (all further statutory references are to this code unless otherwise indicated), “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 [character evidence prohibited], if the evidence is not inadmissible pursuant to Section 352.” Section 352 grants the 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, of confusing the issues, or of misleading the jury.”
As stated in People v. Fitch (1997) 55 Cal.App.4th 172: “Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is ‘critical’ given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]” (Id. at pp. 181-182, fn. omitted.) People v. Falsetta (1999) 21 Cal.4th 903 holds that the provisions of section 1108 do not violate due process. (Id. at p. 916.) We review whether the evidence should have been excluded under section 352 using an abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Defendant objected to the evidence relating to Joanna’s molestation on grounds the allegations were too insubstantial. But the court engaged in the proper balancing test to determine whether section 352 barred the evidence. After the trial, the parties stipulated that “after the court reviewed the entire videotaped interview and taped transcript of Joanna []’s interview by law enforcement and after completing a balancing test of the offered evidence under . . . section 352, the court determined the testimony of Joanna [] was admissible pursuant to . . . section 1108.”
As defendant notes, People v. Falsetta, supra, 21 Cal.4th 903, lists factors the court must consider when deciding whether to admit evidence under section 1108. (Id. at pp. 916-917.) These include the “nature, relevance, and possible remoteness [of the other sex crime], the degree of certainty of its commission and the likelihood of [the evidence] confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, [and] the burden on the defendant in defending against the uncharged offense . . . .” (Id. at p. 917.)
Defendant states that the “degree of certainty of its commission” factor is a primary concern in this appeal. But Joanna’s statements to the two officers, although vague in detail, were clear in their effect: she too was molested by defendant at the same age as her sisters were when defendant first abused them. The trial court did not abuse its discretion when it determined the statements were believable.
Relying on People v. Harris (1998) 60 Cal.App.4th 727, defendant argues the trial court also abused its discretion in finding that his crimes against Joanna were of the same class and nature as the crimes with which he was charged. He notes that People v. Harris requires a “meaningful similarity” between the charged and the prior crime. (Id. at p. 740.) But although Joanna’s statements lacked detail, the nature of the conduct she ascribed to defendant was meaningfully similar to that reported by the victims. There was no error.
2. The conviction and one-year sentence of count 6 is reversed.
Count six of the information charged defendant with aggravated sexual assault of a child by forcible rape (Pen. Code, §§ 269, subd. (a) (1), 261, subd. (a) (2)) that was alleged to have occurred on and between May 31, 2001 and May 30, 2002. Over defendant’s objection, the court instructed on the lesser included offense of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (d)) and subsequently granted defendant’s motion leaving the latter as the charged offense. The jury found defendant guilty of the charge and thereafter, the court sentenced him to a consecutive term of one year on count 6. Because the crime is subject to a three-year statute of limitations (Pen. Code, § 801), and the original information was filed more than three years beyond May 30, 2002, the count should be dismissed. The Attorney General agrees.
DISPOSITION
The judgment is modified to strike the conviction count 6 and is affirmed as modified. The clerk of the superior court is ordered to prepare a corrected abstract of judgment striking the conviction on count 6 and reducing the total time to be served by defendant by one year. The clerk of the superior court is further ordered to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: O’LEARY, J., MOORE, J.