Opinion
D073555
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO VENACIO RIVERA, Defendant and Appellant.
Mark Steven Ravis for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Falkenstein Hennick and Melissa Mandel, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN364747) APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. Mark Steven Ravis for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Falkenstein Hennick and Melissa Mandel, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Francisco Venacio Rivera of two counts of oral copulation with a child age 10 or younger (Pen. Code, § 288.7, subd. (b)) and one count of committing a lewd act on a child (id., § 288, subd. (a)). The trial court sentenced Rivera to prison for a term of 15 years to life, plus eight years. Rivera asserts two issues on appeal. First, he contends he received ineffective assistance of counsel because his trial attorney failed to move to suppress his confession which was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Second, he contends the trial court erred in admitting evidence of another sexual offense (Evid. Code, §§ 1108, 352).
Statutory references are to the Evidence Code unless otherwise noted.
We conclude that trial counsel's performance was not deficient for failing to move to suppress the confession because it was constitutionally obtained, and that the admission of evidence of another sexual offense, even if erroneous, was not prejudicial. We therefore affirm the judgment.
FACTS
Rivera moved to California from El Salvador in 2013, when he was 17 years old. In or around April 2015, Rivera's mother (mother) walked into the family bedroom and found Rivera underneath the blanket with his seven-year-old sister, K. Mother pulled back the blankets and saw Rivera "[take] his hand out from [K.'s] underwear . . . [¶] and he had his thing out, well out." After this incident, Rivera moved out of mother's home to his (and K.'s) father's apartment.
At trial, police introduced evidence that the father moved out of the family apartment and into his own apartment in November 2014, after Rivera was 18 years old. Rivera was born in June 1996.
Initial Contact with Mother
A report of the incident was forwarded to the County of San Diego Health and Human Services Agency, and A. Martinez, a child protective services worker, was assigned to investigate. Martinez visited mother's home in June 2016. Rivera was not there. Mother spoke with Martinez (in Spanish) and described the incident. She told Martinez that she had seen K. and Rivera under the sheets in her bedroom. She immediately lifted the sheets and saw Rivera's hand underneath K.'s shorts or pants, and he had an erect penis.
Mother did not report the incident she witnessed to police. However, it appears she later disclosed it to a family court services mediator in unrelated family court proceedings.
After speaking with mother, Martinez questioned K., who said that Rivera had touched her " 'pico' " (which she indicated to mean vagina) and " 'pompis' " (buttocks) at her father's house and had told her not to tell anyone. K. said she had seen his " 'palo' " (the word K. used to refer to Rivera's penis) at her father's house.
Martinez also questioned Rivera's 15-year-old sister, J. (who is also K.'s sister). Martinez told J. she was asking questions of the family because there were concerns about her little sister. J. stated she was aware of the situation; she had been home "that day with [her] mom when she ran in the room." Martinez asked J. if Rivera had ever touched her, and J. said yes, it happened once, when she was 6 or 7, in El Salvador.
Martinez called the Escondido Police Department. An officer responded to the call. Martinez was still present in the home when the responding officer spoke with mother. Audio and video of their discussion were recorded on the officer's body-worn camera. Mother recounted the incident from the prior year when she found Rivera in bed with K. Mother explained she "checked" that K. was "okay" and sent Rivera to live with his father. Mother also stated that two weeks prior, K. suddenly protested visiting her father's apartment and confided that Rivera had touched her again. K. told mother that, when their father left the room to take a phone call, Rivera "put his hand in and touched her."
Forensic Interview of K.
In July 2016, C. Schultz conducted a forensic interview of K., who was then seven years old. Martinez and Escondido Police Department detective M. Mayfield were present for the interview. During the interview, Schultz asked K., "I want to know why you came here today[;] [¶] . . . did something happen to you?" K. responded, "[m]y brother touched me from behind and front." K. explained that "[Rivera] pulled [her] panties down" and touched her "pico" (vagina) and "pompis" (buttocks). Schultz showed K. a drawing of a female body, and K. circled the parts of her body where Rivera had touched her, identifying the vagina and buttocks.
Schultz then asked K. about the last time Rivera touched her. K. said the last time Rivera touched her was at her father's house. K. explained how Rivera pulled down her underwear and "put his part in [hers]." Schultz asked K. "[a]nd that happened the last time [you were] with [Rivera]?" K. responded, "[l]ots of times." K. said that Rivera touched her "above and below" the clothes. When Schultz asked, "was [Rivera] doing something with his other hand," K. stated that he had his iPhone and also said, "[h]e opened [his] zipper and he pushed the—that thing (unintelligible) and he put his little stick or pico that (unintelligible) and he put in—in mine butt and in the pico." When Schultz asked K., "[h]is stick?" K. explained, "[w]hat men have"; "that thing."
Rivera's Confession
In September 2016, Detective Mayfield (who does not speak fluent Spanish) had a Spanish-speaking investigator contact Rivera, a native Spanish speaker, to see if he would be willing to come to the police station and speak about the investigation. He agreed. At the interview, Rivera "admit[ted] [his] mistake." He explained that he had been sexually abused as a child in El Salvador and stated he "wanted to experiment how to feel . . . what [his abuser] had felt with [him]." He detailed several incidents involving K. beginning when he was 17 years old, and explained that, when K. asked to play games on his phone, he asked if he could touch her or asked her to touch him. He detailed two incidents of oral copulation, both of which occurred at his father's apartment. Once, when K. asked to play with his phone, he asked her to "kiss [his] . . . penis" "like a lollipop" when they were in their father's living room; he stated she sucked on his penis three times. In a second incident, she "kissed" his penis while they stood in front of the open refrigerator at their father's home. He also admitted he attempted to "penetrate" K. "in her behind" and "in front." He stated these incidents occurred at mother's home when he was 17. The detectives arrested Rivera after he made these admissions and advised him of his Miranda rights. The detectives then asked additional questions, reviewing the details of the admitted incidents, before handcuffing Rivera and escorting him from the interview room.
An information charged Rivera with two counts of oral copulation (Pen. Code, § 288.7, subd. (b)) and one count of committing a lewd act on a child (id., § 288, subd. (a)).
Trial
At trial, mother denied seeing Rivera and K. lying on a bed under a blanket and denied seeing Rivera touch K. in a way that he should not have. Mother stated she was aware K. told someone that her brother was doing inappropriate things to her, but she did not believe K.
K., who was nine years old when she testified, identified Rivera in the courtroom as her brother but denied he had ever touched her inappropriately. She also denied asking to look at his cell phone. She testified she did not remember the forensic interview.
J., now 16 years old, testified she grew up in El Salvador with Rivera. J. denied that Rivera had ever touched her inappropriately, denied speaking with a social worker from child protective services, and denied telling anyone that Rivera had touched her when they were living in El Salvador.
Child protective services worker Martinez testified about her initial visit to the family home and the statements mother and the children made then. Martinez explained that she asked J. if Rivera had ever touched her, and J. said yes, he touched her once on the vagina, when she was 6 or 7, in El Salvador. Video from the officer's body-worn camera—depicting mother's prior statement to the police—was played for the jury.
Detective Mayfield testified she was present for the forensic interview of K., and a video of the forensic interview was played for the jury. The drawings on which K. circled body parts where Rivera had touched her were shown to the jury. Detective Mayfield further testified that another investigator who spoke Spanish contacted Rivera to ask if he would be willing to come in and speak with Mayfield regarding the investigation, and he agreed. A video of the interview was played for the jury.
The jury was instructed with CALCRIM No. 1128, oral copulation, which required the jury to find (among other things) that "[a]t the time of the act, the defendant was at least 18 years old." The jury was instructed with CALCRIM No. 1110, lewd act on a child, which required a finding that "[t]he defendant committed the [lewd] act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child." During closing arguments, defense counsel referred to Rivera's confession and argued there was no proof the incidents occurred when Rivera was over 18 years old, and the evidence indicated that Rivera did not commit the lewd act with the requisite sexual intent but rather "because [he] wanted to see what it was like to be in charge and [in] control."
The jury returned guilty verdicts on all three counts. Rivera appeals.
DISCUSSION
I.
Failure to File Motion to Suppress Confession
Rivera contends counsel was ineffective for failing to move to suppress his confession. He argues he was in custody during the pre-Miranda phase of the interview, and the statements he made to police detectives post-Miranda were obtained through an unconstitutional two-step interrogation process in violation of his constitutional rights. Rivera contends defense counsel's failure to move to suppress the confession constitutes deficient performance that caused prejudicial harm at trial. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)
A. Additional Background
As discussed previously, in September 2016, a Spanish-speaking investigator from the Escondido Police Department asked Rivera if he was willing to speak with police. Rivera agreed to an interview, and his mother brought him to the police station. Detective Mayfield brought Rivera to an interview room where she was assisted by another detective who spoke Spanish. At the outset of the interview, the detectives advised Rivera that the door to the room would not be locked, that he was not under arrest, and that he was there voluntarily. They asked whether he preferred to have the door open or closed, and Rivera stated he would prefer "not open" because it was "more private." The detectives told Rivera that K. said he "touched her on her private parts" and asked him "what happened." Rivera stated he "admit[ted] [his] mistake" and disclosed incidents of sexual abuse he experienced as a child in El Salvador.
Rivera told the detectives he "just speak[s] Spanish."
The detectives asked questions like, "when was the first . . . time [he touched K.]," "what have you done to her," "[i]s this recent," and "how many [times]?" Rivera detailed several incidents involving K. The detectives arrested him and advised him of his Miranda rights after approximately one hour and 40 minutes. Post-Miranda, the detectives questioned Rivera for another 20 minutes, reviewing several incidents he had described. At the end of the interview, Rivera told the detectives he felt they treated him "with respect."
B. Legal Principles
In assessing claims of ineffective assistance of counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and if there is a reasonable probability that, but for counsel's failing, the result would have been more favorable to the defendant. (Strickland, supra, 466 U.S. at pp. 687-688, 693-694.) "A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing Strickland, at p. 687.)
Where a claim of ineffective assistance is premised on a failure to seek suppression of evidence obtained in violation of the Constitution, the defendant must demonstrate the suppression motion was meritorious and there is a reasonable probability the verdict would have been different had defendant prevailed on the motion and the evidence was excluded. (Kimmelman v. Morrison (1986) 477 U.S. 365, 375.) "Counsel's failure to make a futile or unmeritorious objection is not deficient performance." (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 (Beasley).)
The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) In Miranda, the United States Supreme Court held that "without proper safeguards the process of in- custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." (Miranda, supra, 384 U.S. at p. 467.) A person questioned by law enforcement after being "taken into custody" must first be warned that he or she has the right to remain silent, that any statements that he or she makes may be used against the person, and that he or she has a right to the presence of an attorney, either retained or appointed. (Id. at p. 444.) For the Miranda rule to apply, there must be an interrogation by a police officer (or the officer's agent) while the suspect is in police custody. (Id. at p. 478.)
The parties do not dispute the interview was a police interrogation. (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [interrogation is express questioning or other police action reasonably likely to elicit an incriminating response].) Our analysis thus turns on whether the interrogation was custodial. (People v. Bejasa (2012) 205 Cal.App.4th 26, 39.) Whether a person is in custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." (Stansbury v. California (1994) 511 U.S. 318, 323 (Stansbury).) "The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact." (People v. Ochoa (1998) 19 Cal.4th 353, 401.) "When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must 'apply a deferential substantial evidence standard' [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, 'a reasonable person in [the] defendant's position would have felt free to end the questioning and leave' [citation]." (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
"To determine whether an interrogation is custodial we consider a number of circumstances, including: 'whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation.' " (People v. Torres (2018) 25 Cal.App.5th 162, 172-173 (Torres).)
"We independently evaluate whether the defendant was in custody by considering the totality of the circumstances surrounding the incident. [Citation.] No single factor is dispositive. [Citation.] 'Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.' " (Torres, supra, 25 Cal.App.5th at p. 173.)
C. Analysis
Rivera argues he was in custody during the initial, pre-Miranda phase of the interview, and his confession was obtained in violation of his Miranda rights. We disagree.
Only a few circumstances here weigh in favor of finding a custodial environment. Rivera was questioned at the police station, and he was the only suspect regarding K.'s allegations against him. "But Miranda warnings are not required 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.' " (People v. Moore (2011) 51 Cal.4th 386, 402, italics omitted (Moore); see also Stansbury, supra, 511 U.S. at p. 326 [holding "whether the interrogating officers have focused their suspicions upon the individual being questioned (assuming those suspicions remain undisclosed) is not relevant for purposes of Miranda"].) Further, two detectives were present, and Rivera was arrested at the end of the interview.
By contrast, the factors indicating that Rivera was not in custody during his interview are more compelling here. Rivera voluntarily agreed to the interview and independently came to the police station. (See Green v. Superior Court (1985) 40 Cal.3d 126, 131-135 (Green) [finding a defendant who voluntarily interviewed with officers at the police station, was advised he was free to leave if he wanted to and submitted to a detailed non-accusatory interview over a two-hour period was not in custody during a station house interview]; In re Kenneth S. (2005) 133 Cal.App.4th 54, 63-65 (Kenneth S.) [juvenile who was voluntarily brought to station house by foster mother and interviewed in an area restricted from public access held not to be in custody where officer advised him he was free to leave at any time]; Moore, supra, 51 Cal.4th at p. 402 [defendant's voluntary interview, during which two officers questioned him in an unlocked room at station house for one hour and 45 minutes, asking "accusatory and skeptical questions," was found to be noncustodial where interview "as a whole, [was not] particularly intense or confrontational"].)
Detectives informed Rivera he could leave at any time during the interview, and he expressed that he understood the absence of a restraint on his freedom to do so. (Kenneth S., supra, 133 Cal.App.4th at p. 65; see California v. Beheler (1983) 463 U.S. 1121, 1125 ["Although the circumstances of each case must certainly influence a determination of whether a suspect is 'in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest."].) Detectives advised Rivera the door would be open or closed at his discretion, and he chose to have it closed because it was "more private." During the interview Rivera sat closest to the door, while the detectives sat across the interview table from him, leaving his path to exit the room unobstructed. There were no physical restrictions on Rivera's freedom of movement—he was not handcuffed or locked in the room. (Kenneth S., at p. 65; cf. Green, supra, 40 Cal.3d at p. 135 [interview lasting two hours in locked room held noncustodial where there was no evidence defendant was aware it was locked].) He never asked to leave, never attempted to leave, and never asked to speak to his mother or make a phone call to anyone else.
Rivera contends "[t]he record is unclear as to whether this [i.e., the detectives' confirmation that Rivera was there voluntarily and he was free to leave at any time] was understood by this particular suspect in this particular setting." We disagree. The video shows that Rivera acknowledged he was free to leave both verbally and by nodding his head. Not only does the video reflect the casual nature of the conversation between Rivera and the detectives, but it shows Rivera's willingness to voluntarily participate in it.
The length of the interview, which lasted one hour and 40 minutes before Rivera was arrested, was not unreasonably long under the circumstances where a second detective was present only to translate, and these translation efforts extended the questioning process. (Green, supra, 40 Cal.3d at p. 135 [interview lasting two hours in locked room held noncustodial]; Moore, supra, 51 Cal.4th at p. 402 [interview lasting one hour 45 minutes in interview room held noncustodial]; see also People v. Saldana (2018) 19 Cal.App.5th 432, 459 (Saldana) [analyzing a brief interview deemed to be custodial, and observing the duration of defendant's interview, lasting under an hour, is less important than the character and quality of the interrogation].)
The detectives asked open-ended questions and Rivera described their behavior as "respect[ful]." (See People v. Spears (1991) 228 Cal.App.3d 1, 25-26 [defendant was not in custody during 75-minute-long interview at police station when "courteous and polite" officers asked detailed, but not accusatory, questions].) The detectives did not dominate or control the course of the interrogation or use interrogation techniques to pressure Rivera. The detectives were not aggressive, confrontational, or accusatory, and they did not manifest a belief Rivera was culpable or that they had evidence to prove it. All of these factors support the conclusion that a reasonable person in Rivera's situation would have felt free to leave, and his interview therefore was not custodial. (Cf. People v. Boyer (1989) 48 Cal.3d 247, 212-274 [a defendant who consented to a police station interview, but who was subjected to an intense two-hour interrogation where officers used aggressive, directly accusatory questioning, and advised the defendant they knew he was guilty was found to be effectively in custody during the interview], disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1163-1165 [concluding confrontational and aggressive interrogation was custodial in nature and finding Miranda violation]; Saldana, supra, 19 Cal.App.5th at pp. 455-460 [voluntary interview of defendant found to be custodial where officers dominated and controlled the interrogation, manifested the belief that defendant was culpable and they had evidence to prove it, and were aggressive, confrontational, and accusatory]; see also Torres, supra, 25 Cal.App.5th at pp. 173-174, 176-180 [defendant who voluntarily agreed to questioning in police officers' unmarked car was found to be in custody when the officers used coercive tactics, dominated and controlled the course of the interrogation, and advised defendant of false inculpatory evidence].)
Rivera appears to suggest that the detectives employed coercion by assuring Rivera his statements would not affect his job. Without providing a citation to the record or any legal authority, Rivera states that he agreed to talk "only if it wouldn't affect his job" and "[h]e was implicitly assured that it would not." The record does not support Rivera's assertion that he was coerced. Early in the interview, the detective asked Rivera what line of work he was in and if he was working now. Rivera asked, "[w]ill [talking with you] affect me in any way here with the . . . [work]?" The translating detective told him, "[The detective] just wants to know what you do for a job. She's not going to speak to your [employer]. Nothing like that . . . ." Nothing in the record indicates the detectives employed coercive tactics during this brief exchange or during any other part of their questioning.
In sum, we conclude Rivera cannot establish the first requirement under Strickland, that counsel's performance was deficient. Considering the totality of the circumstances, Rivera's interview was not custodial prior to his arrest, and therefore did not contravene Miranda. " '[A] defense counsel is not required to make futile motions or to indulge in idle acts to appear competent.' " (People v. Scheer (1998) 68 Cal.App.4th 1009, 1024.) Trial counsel's failure to move to suppress Rivera's confession therefore does not constitute deficient performance. (Beasley, supra, 105 Cal.App.4th at p. 1092 ["Counsel's failure to make a futile or unmeritorious objection is not deficient performance."].)
Rivera also cannot establish prejudice under Strickland's second prong. Had counsel moved to suppress the confession, the motion would not have been granted, and the outcome of trial would not have been different. (People v. Frye (1998) 18 Cal.4th 894, 979 ["In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel's deficiencies, the result would have been more favorable to the defendant."], overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Because trial counsel's performance on this matter did not fall below an objective standard of reasonableness under prevailing professional norms, and because Rivera cannot demonstrate prejudice, we reject Rivera's ineffective assistance of counsel claim.
We reject Rivera's additional contention his confession was inadmissible because it was obtained through an unconstitutional two-step interrogation, in violation of the rule announced in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). Seibert prohibits law enforcement officers from employing a deliberate two-step interrogation technique where they elicit an unwarned confession, administer Miranda warnings and obtain a waiver of Miranda rights, then elicit a repeated confession. (Id. at pp. 604, 609-610, plur. opn. of Souter, J.; id. at p. 622, conc. opn. of Kennedy, J.) But Seibert involved Miranda warnings delivered in the midst of a custodial interview. (Id. at p. 604, plur. opn. ["This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession."], italics added.) We have already determined that Rivera was not in custody when he was questioned prior to receiving Miranda warnings. Because Rivera was not in custody during his initial police interview, Seibert was not implicated here and Rivera's reliance on that decision is misplaced.
When the detectives later reached a point in their investigation where a Miranda warning was required, the detectives provided a complete warning and obtained a valid waiver from Rivera. Rivera was told at that time that he was no longer free to leave and the detectives explained they wanted to discuss the allegations against him if he was willing to waive his right to remain silent. After waiving his Miranda rights, Rivera again confessed that he sexually abused his sister multiple times. Rivera suggests his statements may not have been voluntary and he may not have fully understood the Miranda warnings. However, Rivera makes these assertions to support his claim that the detectives engaged in a deliberate two-step interrogation in violation of Seibert. Rivera does not separately argue his post-Miranda confession was the product of police coercion and therefore involuntary. We therefore do not separately address any claim that Rivera's statements, including his post-Miranda statements, were involuntary. (See People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8 ["We need not consider such a perfunctory assertion unaccompanied by supporting argument."]; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [reviewing court may treat claim as waived " ' "and pass it without consideration" ' " where appellate brief lacks legal argument with citation to authorities on the points made].) Even if we were to consider the issue, for reasons already discussed, the record does not establish that Rivera's will was overborne or that his post-Miranda statements were coerced. (See People v. Cunningham (2015) 61 Cal.4th 609, 642 ["The test for the voluntariness of a custodial statement is whether the statement is ' "the product of an essentially free and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his capacity for self-determination critically impaired" ' by coercion."].)
II.
Admission of Section 1108 Evidence
Rivera also contends the trial court abused its discretion in admitting evidence of another sexual offense (§§ 1108, 352).
A. Additional Background
Prior to trial, Rivera moved to exclude evidence that he had engaged in prior sexual misconduct with his other sister, J. Defense counsel argued the evidence should be excluded because it was remote in time, not sufficiently similar to the charged offense because Rivera would have been only 11 or 12 years old when it occurred, and the allegations were not corroborated. Counsel further argued the evidence was unduly prejudicial. The trial court allowed the evidence of Rivera's prior sexual misconduct, concluding the evidence was probative and relevant, and rejecting Rivera's claim it was unduly prejudicial.
As discussed ante, Martinez testified that J. told her that Rivera touched her on her vagina when she was six or seven, when they lived in El Salvador. At trial, J. denied Rivera touched her.
B. Legal Principles
"The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285 (Cottone); accord, People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); § 1101.) But section 1108 creates a statutory exception to this rule for sex offense cases like this one; it provides in relevant part: "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).)
A prior "sexual offense" for purposes of section 1108 includes "[c]ontact, without consent, between any part of the defendant's body . . . and the genitals or anus of another person." (§ 1108, subd. (d)(1)(C).)
Section 1108 reflects the Legislature's recognition that sex offense cases have unique attributes. (Falsetta, supra, 21 Cal.4th at p. 918.) " '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.' " (Id. at p. 911.) Evidence of this type is uniquely probative of a defendant's propensity to commit sex offenses and policy considerations outweigh the general prohibition against propensity evidence. (Cottone, supra, 57 Cal.4th at pp. 285-286.)
"By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352." (Falsetta, supra, 21 Cal.4th at pp. 916-917.) "Specifically, the court weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], 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 . . . .' " (People v. Merriman (2014) 60 Cal.4th 1, 41 (Merriman), quoting Falsetta, supra, 21 Cal.4th at p. 917.)
"The 'determination as to whether the probative value of such evidence is substantially outweighed by the possibility of . . . unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is [in] the best position to evaluate the evidence." [Citation.]' [Citation.] We review rulings under section 352 for abuse of discretion. [Citation.] 'A trial court's exercise of its discretion under section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v. Hernandez (2011) 200 Cal.App.4th 953, 966 (Hernandez).)
C. Analysis
Rivera contends the testimony about him touching his other sister should not have been admitted because the incidents were not similar and were remote in time. We conclude the trial court did not abuse its discretion in admitting this evidence.
On the issue of similarity between the two offenses, it is well settled that there is a "distinction between admissibility under Evidence Code section 1101[, subdivision] (b), which requires a sufficient degree of similarity between charged and uncharged offenses, and admissibility under Evidence Code section 1108, which does not." (Merriman, supra, 60 Cal.4th at p. 41.) "[A]lthough lack of similarity is relevant to the court's decision whether to exclude Evidence Code section 1108 propensity evidence as more prejudicial than probative, that factor is not dispositive." (Id. at pp. 41-42.) Here, each sexual offense was targeted at a familiar, vulnerable victim who shared the same sibling relationship with Rivera, at a similar age. Both sisters were likely to trust their brother and both were victimized by him in the same way. We therefore conclude that the incidents—which both involved Rivera inappropriately touching his sisters when they were six or seven years old—were sufficiently similar under section 1108. (See People v. Cordova (2015) 62 Cal.4th 104, 134 (Cordova) [sex offenses were sufficiently similar where they were "committed late at night inside a home against young children of similar age"]; Cottone, supra, 57 Cal.4th at p. 286 ["The conduct in this case, which involved touching the vaginal area of his young sister, was manifestly relevant on the question of whether defendant sexually assaulted another young female relative."].)
We also reject Rivera's contention that the uncharged offense was too remote in time to be admissible. "Although this is a relevant factor for the court to consider in exercising its discretion [citation], the time gap alone does not compel exclusion of the evidence." (See Cordova, supra, 62 Cal.4th at p. 133 [prior offenses 13 and 18 years apart from the charged crime were admissible].) "Numerous cases have upheld admission pursuant to Evidence Code section 1108 of prior sexual crimes that occurred decades before the current offenses." (People v. Robertson (2012) 208 Cal.App.4th 965, 992; see also People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [30-year-old sex offense admitted]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 ["20 years is not too remote" under section 1108]; People v. Ewoldt (1994) 7 Cal.4th 380, 405 [prior conduct 12 years before charged offense not too remote].) Rivera's earlier conduct here was not so remote as to render it inadmissible.
The trial court also reasonably concluded the probative value of this evidence was not outweighed by its prejudicial impact. (§ 352.) The evidence was material in demonstrating Rivera's propensity to commit the charged crimes. (Cordova, supra, 62 Cal.4th at pp. 133-134.) Compared to the charged crimes against K., Rivera's prior conduct with J. was not particularly inflammatory. (See People v. Loy (2011) 52 Cal.4th 46, 62.) And there was no indication that the brief testimony on this issue was confusing to the jury or resulted in an undue consumption of time. The trial court also instructed the jury that the evidence of the uncharged offenses "is not sufficient by itself to prove that the defendant is guilty of the charged crimes in this case." We presume that the jury understood and followed this instruction. (People v. Edwards (2013) 57 Cal.4th 658, 746.) In light of this instruction and because the uncharged offense was not more egregious than the charged offenses, it is unlikely the jury would have used the present case as a means of punishing Rivera for his uncharged prior conduct. (Hernandez, supra, 200 Cal.App.4th at p. 969.)
The jury was further instructed it could consider evidence regarding the uncharged act "only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense," and that it must disregard the evidence in its entirety if the prosecution failed to meet this burden. (See CALCRIM No. 1191.)
Even if the trial court erred in admitting evidence of Rivera inappropriately touching his other sister, the error was harmless. References to the incident involving J. were brief, and the evidence supporting Rivera's conviction, including his mother's statements to the detective, K.'s statements during the forensic interview, and Rivera's detailed confession, is overwhelming. It is not reasonably probable he would have achieved a different result had the court excluded evidence of Rivera's sexual misconduct with his other sister. (Falsetta, supra, 21 Cal.4th at pp. 924-925; Watson, supra, 46 Cal.2d at p. 836.) Indeed, Rivera does not argue he would have achieved a different result in the absence of this evidence. Rather, Rivera contends the issue "is important in the event the Court vacates the judgment [due to the purported Miranda violation] and a new trial ensues." We have concluded Rivera's confession was not obtained in violation of Miranda, and no new trial will ensue.
Rivera admits "[t]his issue does not rise to the importance of [constitutional] issues." As such, Rivera must demonstrate that it is reasonably probable he would have achieved a different result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Jandres (2014) 226 Cal.App.4th 340, 357 [in prosecution for sex offenses, trial court's error in admitting propensity evidence of a prior incident of attempted kidnapping in which defendant allegedly molested a child was reviewed under Watson's "reasonable-probability test" that applies to error under California law].)
Rivera rhetorically asks, if he was 11 or 12 years old at the time of the prior offense, "how could he really be responsible?" Although Rivera does not directly raise the issue, Penal Code section 26 "creates a rebuttable presumption that a child under 14 is incapable of committing a crime." (Cottone, supra, 57 Cal.4th at p. 280.) This presumption of incapacity applies not only to charged offenses, but also where the prosecution offers propensity evidence under Evidence Code section 1108 regarding unadjudicated sexual offenses committed when the defendant was under age 14. (Cottone, at p. 281.) To rebut the presumption, the prosecution must prove "by clear and convincing evidence that defendant appreciated the wrongfulness of the unadjudicated sexual offense offered under [Evidence Code] section 1108." (Id. at p. 286.) Whether or not a defendant had the capacity to appreciate the wrongfulness of his conduct, under Penal Code section 26, is a preliminary question for the court to determine. (Cottone, at p. 285.) By failing to object on this ground at the time of trial, however, Rivera forfeited this claim of error. (See id. at p. 292 [holding that "upon a defendant's timely objection, the trial court must find by clear and convincing evidence that the defendant had the capacity to commit an unadjudicated juvenile offense before admitting that evidence under [Evidence Code] section 1108."]; Evid. Code, § 353, subd. (a).) Even if the issue had not been forfeited, we would conclude any error in admitting this evidence was harmless for reasons already discussed given the brief nature of the testimony and the other overwhelming evidence of guilt on the charged offenses. (Cottone, at p. 293 [concluding that the failure to hold a preliminary fact hearing was not prejudicial].)
In sum, we conclude Rivera has failed to carry his burden of rebutting the strong presumption of admissibility of the sexual crimes evidence under Evidence Code section 1108. (Merriman, supra, 60 Cal.4th at p. 42.) The trial court properly exercised its discretion in admitting evidence of Rivera's prior sexual conduct with his sister J., and any assumed error in admitting this evidence pursuant to sections 352 and 1108 was harmless.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. IRION, J.