Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-505715
SIMONS, Acting P.J.
Defendant Douglas Raymond Jurling appeals his conviction by court trial of felony annoying and molesting a child under age 18. (Pen. Code, § 647.6, subd. (a).) His sole contention on appeal is that the trial court erred in admitting evidence of his prior sexual misconduct. We reject the contention and affirm.
Defendant was sentenced to two years in state prison.
BACKGROUND
On the afternoon of February 2, 2007, the 15-year-old victim was waiting at a bus stop after school with her friends, Amy and Connor. The victim was seated in her wheelchair and Amy and Connor were seated on the ground to her left. A man, later identified as defendant, approached and sat down on the curb facing the victim, about a foot away from her. Defendant looked at the victim’s chest, which made her feel uncomfortable. He then rested his fingers on the victim’s leg, about five inches above her knee, moved his fingers and said she had “cute legs.” The victim felt “disgusting” and “uncomfortable,” and quickly moved her wheelchair to the other side of her friends. The victim whispered to Amy that defendant was touching her and suggested that she and Amy act like they were “girlfriend[s]” “to make [defendant] go away.” After Amy sat on the victim’s lap, put her arm around the victim and kissed the victim’s cheek, defendant did not leave and continued to stare at the victim’s chest for about 10 minutes.
Defendant then took out a pen and entered the McDonald’s next to the bus stop. As the bus arrived, defendant touched the victim’s shoulder and persisted in putting a crumpled piece of paper in front of her until she took it. The note read, “As your eyes meet mine and mine yours, I find myself attracted to you.” The note contained a phone number and was signed, “Douglas.” After the victim boarded the bus, its wheelchair ramp broke and the bus remained parked at the bus stop and no one else was allowed to board.
For 10 or 15 minutes, defendant remained at the bus stop staring at the victim through the bus window. Amy told defendant that he was making the victim uncomfortable and upset and he should leave the victim alone. Defendant responded, “She’s free, white, and 21, she can do what she wants.” When Amy told defendant that the victim was only 15, he said he did not mind, and made it clear he wanted to board the bus.
Eventually Amy and Connor were allowed to board the bus, where they found the victim very upset and crying. After defendant left the scene, the victim was then carried off the broken bus and she called her father to pick her up. She thereafter reported the incident to police.
Prior Molestation Evidence
Former Lake County Sheriff’s Deputy Denny testified that on June 20, 1996, he arrested defendant for suspected child molestation of three-year-old M.G.
M.G.’s mother, T.G., testified that in June 1996 defendant worked for T.G.’s father. On June 20, during a dinner party at T.G.’s house, defendant stayed with T.G.’s three children while T.G. and her father went to the store. When T.G. returned from the store, M.G. told T.G. and T.G.’s father that defendant had touched her vagina. T.G. called the police and defendant was arrested.
Fourteen-year-old M.G. testified that, when she was three or four, defendant sat next to her on the couch, touched her vagina with his hand and asked her if she liked it.
A certified copy of defendant’s misdemeanor Penal Code section 647.6 conviction arising from the molestation of M.G. was admitted into evidence and then withdrawn. Defendant apparently pled guilty to the prior offense in 1996.
DISCUSSION
Defendant contends the court erred in admitting evidence of his prior sexual molestation conviction. He argues the evidence was irrelevant and prejudicial under Evidence Code section 352 and was not sufficiently similar to the charged offense.
All undesignated section references are to the Evidence Code.
Prior to trial, the People moved in limine to admit the evidence of defendant’s prior sexual abuse of M.G. under sections 1108 and 1101, subdivision (b). The People argued the evidence was more probative than prejudicial under section 352, and was admissible under section 1101, subdivision (b), to show motive, the absence of mistake, and defendant’s propensity to be sexually attracted to children. Defendant moved in limine to exclude any evidence of his prior molestation conviction on the ground that its prejudicial effect outweighed its probative value. He argued that the thrust of his defense was that he mistakenly believed that the victim in this case was over age 18. Defendant argued that since the prior conviction involved a three-year-old victim, it was not similar to the instant case. He also argued that the prior conviction was remote in time and there was no evidence of any intervening similar conduct.
Section 1108, subdivision (a) provides: “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.”
After conducting the requisite balancing under section 352, the court ruled that the prior sex offense evidence was admissible because it was relevant to show intent, “possibly motive,” and a lack of accident, and was “not unduly prejudicial.”
Section 1108 permits the trier of fact to consider a defendant’s prior sex offenses as propensity evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912; People v. Pierce (2002) 104 Cal.App.4th 893, 897.) In enacting section 1108, the Legislature determined that evidence of prior sex offenses is so uniquely probative in sex crime prosecutions that it is presumed admissible without regard to the limitations of section 1101. (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) Admissibility of such propensity evidence under section 1108 is subject to the court’s weighing process under section 352. In conducting its section 352 weighing process, the court must consider factors including the relevance and remoteness of the prior offense, its similarity to the charged offense, the degree of certainty of its commission, and the likelihood it will confuse, mislead, distract or inflame the jury. (Falsetta, at pp. 916-917; Pierce, at p. 900.) The trial court has broad discretion in conducting its section 352 balancing, and we reverse the court’s admissibility ruling only if the exercise of discretion was “ ‘arbitrary, whimsical or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Defendant appears to argue that the prior conviction involving the “actual” molestation of a young child is not sufficiently similar to the instant offense involving “the flirtatious overtures of an adult to an older teenager who could be mistaken for age 18,” where he momentarily touched the victim’s leg to get her attention, to have any probative value. He also argues there was “no issue of ‘accident, intent, or motive’ ” in the instant offense.
To be probative under section 1108, a prior sex offense need not be so similar as to give rise to an inference of a noncharacter purpose under section 1101. (People v. Soto (1998) 64 Cal.App.4th 966, 984.) “The charged and [prior offenses] need not be sufficiently similar that evidence of the latter would be admissible under . . . section 1101, otherwise . . . section 1108 would serve no purpose.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) Thus, evidence of uncharged sex offenses is admissible to prove that “the defendant has a disposition to commit sex crimes.” (People v. Reliford (2003) 29 Cal.4th 1007, 1012.)
The Supreme Court in Reliford specifically left open the issue of “whether the uncharged sex acts must be similar to the charged offenses in order to support the inference.” (People v. Reliford, supra, 29 Cal.4th at p. 1012, fn. 1.)
During closing argument defense counsel argued that defendant touched the victim’s leg under the reasonable and mistaken belief that she was not a minor. In rebuttal, the prosecutor argued that defendant had a deviant sexual interest in children as evidenced by his prior sexual molestation of M.G., and acted on that interest when he approached and touched the victim.
We conclude that the offense against M.G. was sufficiently similar to the charged offense. The prior molestation of M.G. resulted in defendant’s misdemeanor conviction for violating Penal Code section 647.6, a sexual offense. Moreover, both the prior and the charged offenses involved minors. Any dissimilarity between the two molestations went to the weight, not the admissibility of M.G.’s testimony. (See People v. Mullens (2004) 119 Cal.App.4th 648, 661.)
We also reject defendant’s claim that because the prior sex offense occurred approximately 11 years before the charged offense it was too remote. The passage of a substantial length of time does not automatically render the prior incident inadmissible, and no specific time limits have been established in determining whether a prior sex offense is too remote. (People v. Branch, supra, 91 Cal.App.4th at p. 284 [30-year gap not too remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20-year gap not too remote].)
Defendant appears to argue that the evidence of the 1996 molestation of M.G. was prejudicially inflammatory because it involved an actual touching of a young child’s vagina, whereas the charged offense involved the momentary touching of the victim’s leg. He asserts that the prior act evidence served to “overwhelm the defense evidence” and deflected the factfinder from considering whether defendant “made an honest mistake as to age.” We disagree. Here the trial court served as the factfinder. In that context, we are entitled to presume that the trial court, a professional jurist, was capable of weighing the admissible evidence, without being prejudiced by the more serious prior act evidence. (See People v. Walkkein (1993) 14 Cal.App.4th 1401, 1408.) In addition, the court was informed that the prior offense against M.G. resulted in a conviction, and therefore, it is unlikely the court convicted defendant merely to punish him for the prior offense. (People v. Falsetta, supra, 21 Cal.4th at p. 917; People v. Pierce, supra, 104 Cal.App.4th at pp. 900-901.)
We conclude the trial court sufficiently analyzed the relevant factors under section 352 and acted within its discretion in admitting evidence of the prior sex offense against M.G.
DISPOSITION
The judgment is affirmed.
We concur. NEEDHAM, J.,STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 352 provides: “The court in its discretion 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.”