Opinion
D058878
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. THOMAS MICHAEL ZATTO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF029729)
APPEAL from a judgment of the Superior Court of Riverside County, Graham Anderson Cribbs, Judge. Affirmed.
Thomas Michael Zatto appeals a judgment following his jury conviction on three counts of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)). On appeal, Zatto contends the trial court erred by: (1) admitting evidence of his commission of other sexual offenses pursuant to Evidence Code section 1108; (2) allowing the prosecutor to impeach his credibility with evidence of his commission of another offense of moral turpitude (Doe 2 incident); and (3) instructing the jury with CALCRIM No. 375 that evidence of the Doe 2 incident could be considered on the issue of his intent in committing the instant offenses. He also contends the evidence is insufficient to support his convictions on the three counts.
All further statutory references are to the Evidence Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
At about 7:15 a.m. on a day in the middle of September 2009, Vanessa Sloniker, an investigator with the Riverside County Sheriff's Department, stopped at a Starbucks coffee shop in Temecula on her way to work. While standing in line, Sloniker saw Zatto and Jane Doe 1 (Jane) directly in front of her, acting intimately toward each other. As Sloniker later testified at trial, their behavior "was very sexual in the way they were touching each other. They were kissing and [Zatto] was rubbing [Jane's] butt and they were just hugging very tightly." They were kissing each other on the lips with open mouths. Zatto was rubbing and caressing Jane's buttocks all over. They held hands with their fingers interlocked. There was a sexual content to their behavior. Sloniker took special notice of their behavior because of the obvious age difference between them (i.e., at least 20 years' difference). Zatto appeared to be in his 30's and Jane appeared to be a minor. However, Sloniker was not 100 percent certain of Jane's age. Other Starbucks customers also noticed their behavior and looked shocked. Sloniker, however, did not immediately report the incident.
At about 7:15 a.m. on October 1, 2009, Sloniker was in line at the same Starbucks coffee shop when she saw Zatto and Jane, standing behind her in line directly to her left. Their behavior was similar to that she observed in September. They hugged each other very closely and kissed each other on the lips. She heard Jane tell Zatto, "I love you so much." Zatto replied, "I love you too. And if you're a bad girl, I will smack that ass." During that interchange, they were facing each other and embracing, with Jane's arms wrapped around Zatto's neck and his arms wrapped around her waist. Zatto was rubbing Jane's lower back just above her buttocks, but did not rub her buttocks as he had in September. When another customer entered the shop and greeted Zatto, he told that acquaintance he was going to take the young girl (Jane) to school. That statement made Sloniker more confident that Jane was a minor. After leaving the shop, Sloniker waited in her car for Zatto and Jane to leave. When they did, she wrote down the license number of the vehicle they entered. When Sloniker got to work 45 minutes later, she identified Zatto through DMV records and wrote a police report describing the incident.
On October 1, Matthew Remmers was an investigator with the Riverside County District Attorney's Office in its Sexual Assault Felony Enforcement (SAFE) Task Force. On that day, he met with Sloniker and reviewed her report. Remmers investigated the incident. He watched Starbucks's surveillance video recorded on October 1. He also interviewed two Starbucks employees, Madeline Monson and Lauren Weimer, and showed them photographs of Zatto and Jane.
That video was later played for the jury during Zatto's trial.
At trial, Monson testified she had seen Zatto, whom she referred to as "Creepy Tom," together with Jane at the Starbucks shop on at least five to seven occasions. She recalled one incident during the summer about two or three years earlier when Zatto and Jane entered the shop wearing swimsuits and flip-flops. Monson saw Jane sitting on Zatto's lap while he stroked her back and played with the string that tied the back of her swimsuit. Another customer then pointed out Zatto's behavior to Monson. Monson thought Zatto's behavior toward Jane was highly inappropriate and made her (Monson) feel uncomfortable.
At trial, Weimer testified she had seen Zatto together with Jane at the Starbucks shop on at least 10 occasions. She recalled one incident during which Jane was sitting on Zatto's lap for a couple of minutes and Zatto was rubbing her arms in a way a husband would rub a wife's arms and not in a way a father would rub a daughter's arms. She recalled at least five other instances during which Zatto inappropriately touched Jane (e.g., intimate hand-holding and hugging), making her (Weimer) uncomfortable.
While investigating the matter, Remmers learned that Child Protective Services (CPS) had previously investigated Zatto's conduct toward Jane based on a report of an instructional aide at Jane's school. In 2006, when Jane was nine years old, Zatto visited the school and ate lunch with her. The aide saw Jane sitting on Zatto's lap while he slowly rubbed or caressed her back up and down, stopping at her lower back/top of her buttocks, in a manner a boyfriend or husband would do. The aide pointed out Zatto's conduct to a coworker, who agreed it was inappropriate. The aide reported the incident to CPS, but was later informed nothing had come of her report.
On October 13, 2009, Remmers arrested Zatto at his home. While there, he seized a laptop computer and cell phone that were in Zatto's upstairs bedroom. The computer contained videos and photographs. One video, recorded on March 2, 2009, showed Jane sitting on the toilet. Another video showed Jane walking with her buttocks as its apparent focal point. One photograph, dated March 2, 2009, found on the computer was titled "pooping," and showed Jane on the toilet.
After leaving Zatto's home, Remmers went to Jane's school where he interviewed her in a conference room. Jane told him that Zatto was her stepfather and they had a good relationship. She stated Zatto spoils her, calls her "Princess" and "Baby Girl," and lets her have what she wants. Jane initially denied that anything "weird" happened between Zatto and her or that he had touched her inappropriately. She stated he gave her hugs and rubs her back at the same time. She stated Zatto, usually wearing only pajama bottoms, comes into her bedroom almost every night and lies with her under her covers for about five minutes. During those times, she was wearing her pajama bottoms and a long-sleeve top. She denied Zatto touched or caressed her during those times. She stated she was positioned in bed with her back to his stomach. Remmers told Jane he had asked her questions to which he already knew the answers, questioned her whether she was being honest and telling him the whole truth, and told her Zatto was going to jail. Jane then admitted Zatto had touched her inappropriately. Jane told Remmers:
"I was um, ten [crying] and he said, 'Baby girl come here' and I said 'Okay.' And then he, he pulled me into his room and he shut the door and then he started touching me and stuff and I felt uncomfortable and I said, 'Daddy stop' and then like when I told him and then I walked out the door and my mom came home. And I didn't tell my mom because I was scared that she, she'd talked to him about it and he'd yell at me."Jane elaborated that Zatto sat on the bed with her, removed his pants, laid her down, and began "rubbing on [her] and stuff." Zatto put his hands under her clothing and touched her breasts and vagina. He put his finger inside her vagina and "play[ed] with himself" while doing it. After about two minutes, Jane told Zatto to stop, pushed him away, and got off the bed. She told Zatto that if he tried to do it again she would tell her mother and call the police. After Jane left the room, her mother arrived home and Zatto pulled up his pants. Jane did not tell her mother about the incident because she was afraid her mother would tell Zatto and he would yell and leave the family. Jane told Remmers that no one other than Zatto had done anything like that to her. Crying, Jane stated she was sad because she was going to lose another male figure in her life.
On October 19, 2009, Christine Brown, a social worker, interviewed Jane. Jane denied Zatto had touched her inappropriately, explaining that during her interview with Remmers she confused Zatto with her biological father who, in fact, had touched her inappropriately at his Detroit home when she was five or six years old. After her interview with Remmers, she thought about it, talked with her mother, and then realized it was her biological father, not Zatto, who had done the acts she had described to Remmers.
At the time of trial, Jane was 14 years old. She testified she did not want Zatto to get in trouble because he "didn't do anything" and it would make it difficult for him to adopt her. She remembered being in the Starbucks shop with Zatto, but he did not touch or rub her bottom. Zatto has never touched her bottom or any other part of her body in a way that made her feel uncomfortable. Although Zatto had kissed her, he never kissed her with his mouth open or with his tongue touching hers, which would be bad. While she and Zatto were hugging in the Starbucks line, Zatto, using a cell phone headset, called her mother and told her she (Jane's mother) was a naughty girl and he was going to smack her when he gets home.
In Zatto's defense, he presented the testimony of Gordon White, a psychologist, who stated he had viewed recordings of Jane's interviews with Remmers and Brown. He described Remmers's interview technique as an interrogatory technique that was suggestive and could lead to confusion. In contrast, Brown's interview technique was narrative questioning, which is more neutral and allows a child to answer more freely without suggested answers. Because Jane may have been stressed during the Remmers interview and Remmers referred back and forth between Zatto and her biological father, she could have been confused and wrongly remembered something (i.e., that Zatto, not her biological father, was her molester). However, White admitted there were portions of the Remmers interview when Jane stated she had lost her biological father, indicating she was not confused. He admitted it was possible Jane changed her story and stated she was wrong after the Remmers interview because she saw her "world was collapsing."
Jane's mother testified Jane had not spoken to anyone between her Remmers and Brown interviews about what had happened. Although she had seen Jane sit on Zatto's lap, kiss him, hug him, and hold his hand, Jane did so the same way she would do so with her mother. Jane's mother had never seen Zatto and Jane act in a way a boyfriend and girlfriend would act. She stated the video of Jane sitting on the toilet was taken as a log for her medical issues.
Zatto testified in his defense. He denied touching or thinking of Jane in a sexual way. He denied Sloniker's version of what occurred at the Starbucks shop. He stated the school aide, Monson, and Weimer were wrong in their testimony. He recorded the video of Jane sitting on the toilet as a family joke (and not because of any sexual intent) after learning from the doctor that she was just constipated. He recorded the video of Jane walking to show her she was walking in an inappropriate manner with which he did not agree.
On cross-examination, Zatto denied that in 2008 he had sexually battered Jane Doe 2 (Doe 2), a legal secretary for his attorney at that time. On a previous visit to the attorney's office, Zatto had referred to Doe 2 as "mamasan" because he thought she was pretty. On his subsequent visit, Doe 2 flirted with him and asked him to take her out for drinks. She went with him to the parking garage to see his motorcycle. As they entered the elevator, he accidentally tripped and fell into her, unintentionally touching her buttocks. He could not explain why Doe 2 called police to report the incident.
In rebuttal, the prosecution presented the testimony of Doe 2, who described the 2008 incident. She was alone in the office when Zatto came in without an appointment with documents he wanted copied. He stood unnecessarily close to her when he handed her the documents and commented that she had pretty toes. She made copies for him and offered to make an appointment for him to meet with his attorney. Zatto declined but, rather than leaving, sat down and talked about his motorcycle. Doe 2 attempted to show she was not interested in conversation with him. When she left the office to get the mail, he followed her toward the elevator. When the elevator door opened, Zatto touched her buttocks. When she asked him what he was doing, he replied, "What?" He acted as if nothing had happened. Doe 2 did not see Zatto trip or lose his balance. Zatto entered the elevator with her and then got off at the parking level. Doe 2 went directly to security and reported Zatto's actions. The following day, she reported the matter to her employer and filed a police report regarding the incident. However, Doe 2 did not pursue prosecution of Zatto because her employer terminated his client relationship with him. Thereafter, Yanna (Zatto's wife) contacted Doe 2 and accused her of flirting with Zatto and wanting a ride on his motorcycle.
In defense rebuttal, Zatto testified that when he and Doe 2 were walking into the elevator, he tripped or stumbled and accidentally bumped into her, but he did not deliberately touch her buttocks. However, he could not remember why he did not apologize to her.
The jury found Zatto guilty on all three counts of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The trial court suspended sentencing and granted Zatto formal probation for a period of five years, subject to conditions including that he serve 270 days in local custody (less 141 days of custody credit). Zatto timely filed a notice of appeal.
DISCUSSION
I
Zatto contends the trial court erred by admitting evidence of other sexual offenses pursuant to section 1108. He argues the court erred by admitting the testimonies of Monson, Weimer, and the school aide regarding his commission of uncharged, prior sexual offenses.
A
As a general rule, evidence of a defendant's prior bad acts is not admissible to prove his or her propensity or disposition to commit bad acts. (§ 1101, subds. (a), (b).) However, section 1108 creates an exception in cases of sexual offenses, providing: "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); People v. Nguyen (2010) 184 Cal.App.4th 1096, 1115-1116.) In People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court explained the legislative purpose of section 1108, stating:
"[T]he Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. . . . [¶] Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, at p. 911.)Evidence of commission of other sex offenses is not limited to offenses for which the defendant has been criminally convicted, but may include evidence of defendant's uncharged prior sex offenses. (People v. Yovanov (1999) 69 Cal.App.4th 392, 404; People v. Nguyen, supra, 184 Cal.App.4th at p. 1117; People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104.)
By its terms, section 1108 requires a trial court to exercise its discretion under section 352 before admitting or excluding evidence of prior sex offenses. 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." The undue prejudice that "section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638.) "Rather, the statute uses the word [i.e., prejudice] in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors." (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Falsetta stated that in applying section 352 to decide whether to admit or exclude evidence of a defendant's other sexual offenses under section 1108, a trial court "must consider such factors as its nature, 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." (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
On appeal, we review the trial court's admission of section 1108 evidence, including its section 352 weighing process, for abuse of discretion. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097; People v. Dejourney, supra, 192 Cal.App.4th at pp. 1104-1105.) "We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling ' "falls outside the bounds of reason." [Citation.]' " (Dejourney, at p. 1105.) Alternatively stated, we will not reverse a trial court's exercise of its discretion under sections 1108 and 352 unless its decision was arbitrary, capricious and patently absurd and resulted in a manifest miscarriage of justice. (People v. Lewis (2009) 46 Cal.4th 1255, 1286; People v. Wesson (2006) 138 Cal.App.4th 959, 969; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
B
Before trial, the prosecutor moved in limine for admission under section 1108 of evidence of Zatto's prior uncharged sex offenses, including the 2006 school lunch incident observed by the school aide and the Starbucks incidents observed by Monson and Weimer. Following arguments of counsel, the trial court ruled that the prosecutor could present section 1108 evidence regarding those incidents. During trial, those three witnesses testified substantially as described above.
The trial court, however, ruled that Doe 2's testimony was not admissible under section 1108.
C
Zatto asserts the trial court abused its discretion by admitting the testimonies of the school aide, Monson, and Weimer as propensity evidence under section 1108. He argues the uncharged prior sex offenses should have been excluded because they were not sufficiently similar to the instant charged offenses. He notes the instant charged offenses that allegedly occurred at Starbucks involved kissing with open mouths, caressing and rubbing Jane's buttocks, tight hugging, and an intimate, sexual manner of touching. The instant charged offense that occurred at Jane's home involved Zatto's touching of her breasts and vagina and inserting his finger in her vagina while he masturbated. Zatto argues the incidents described by the school aide, Monson and Weimer were dissimilar, more innocuous, and could have been innocent conduct. We conclude the uncharged prior sex offenses were not so dissimilar that the court abused its discretion by admitting evidence of them. Zatto's uncharged offenses involved the same alleged victim (i.e., Jane) and involved conduct that was similar to, but apparently not as egregious as, the instant three offenses. The school aide testified that Jane sat on Zatto's lap while he slowly rubbed or caressed her back up and down, stopping at her lower back/top of her buttocks, in a manner a boyfriend or husband would do. Monson testified regarding a similar incident during which Jane sat on Zatto's lap while he stroked her back and played, in a highly inappropriate manner, with the string that tied the back of her swimsuit. Weimer testified regarding a similar incident during which Jane sat on Zatto's lap for a couple of minutes while he rubbed her arms in a way a husband would rub a wife's arms and not in a way a father would rub a daughter's arms.
Although none of the three charged offenses involved Jane sitting on Zatto's lap, two counts involved Zatto rubbing her arms, lower back and/or buttocks in a sexual or intimate manner and the third count involved Zatto rubbing her breasts and vagina under her clothing. The trial court could conclude there was sufficient similarity for the evidence on the uncharged prior acts to be highly probative regarding Zatto's propensity to commit this type of offense, including the instant charged offenses. To the extent Zatto argues the conduct observed by the school aide, Monson and Weimer could have been only innocent displays of affection between Jane and him, we are not persuaded the court abused its discretion by allowing the jury to hear that testimony and make the determination whether his prior uncharged acts were, in fact, sex offenses rather than innocent actions between a father and daughter. In so doing, the court properly instructed the jury with CALCRIM No. 1191 on its proper consideration of the testimony on uncharged sex offenses. We presume the jury followed the court's instructions. We conclude that if the jury believed the uncharged prior conduct was innocent and therefore did not find, by a preponderance of the evidence, that Zatto committed the prior uncharged sex offenses, then it did not consider that evidence for any other purpose. Therefore, the court could reasonably conclude the probative value of the evidence of Zatto's prior uncharged sex offenses was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (§ 352.)
The trial court instructed: "The People presented evidence that [Zatto] committed the crimes of Lewd or Lascivious Act: Child Under the Age of 14, Penal Code section 288(a), that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that [Zatto] in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [?¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that [Zatto] committed the uncharged offenses, you may, but are not required to, conclude from the evidence that [Zatto] was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that [Zatto] was likely to commit and did commit a violation of Penal Code section 288(a) as charged here. If you conclude that [Zatto] committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [Zatto] is guilty of a violation of section 288(a) of the Penal Code. The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
Zatto also argues that it was not certain the uncharged prior sex offenses actually occurred. He notes the school aide, Monson and Weimer saw Zatto with Jane on other occasions when no inappropriate behavior was displayed. Because the three witnesses could have misinterpreted his conduct with Jane, Zatto argues the trial court abused its discretion by not excluding the evidence of his prior uncharged sex offenses. However, although the jury could have concluded the witnesses may have misinterpreted the behavior they described as inappropriately intimate or sexual, that possibility did not require the court to exclude that evidence. Rather, in reasonably exercising its discretion, the court could admit that evidence and allow the jury to make the determination of whether the conduct, in fact, constituted inappropriate sex offenses. As noted above, the court instructed with CALCRIM No. 1191, which told the jury to decide whether Zatto had, in fact, committed prior uncharged sex offenses. If the jury found he had not done so, there could be no undue prejudicial effect under section 352.
Zatto also argues the trial court abused its discretion by admitting the evidence of his prior uncharged sex offenses because it was, in effect, a mini-trial regarding three prior incidents requiring undue consumption of time. However, our review of the record supports the trial court's implicit finding that the testimonies of the school aide, Monson and Weimer would not require an undue consumption of time under section 352. The school aide's testimony consists of 12 pages of the reporter's transcript, Monson's testimony consists of 14 pages, and Weimer's testimony consists of 10 pages. That amount of testimony cannot be considered an undue consumption of trial time, especially in consideration of the nature and severity of the offenses charged in this case. The court did not abuse its discretion by concluding the probative value of evidence of Zatto's prior uncharged sex offenses was not substantially outweighed by the danger of undue consumption of time.
We likewise are not persuaded by Zatto's conclusory assertion that the trial court abused its discretion because admission of evidence of his prior uncharged sex offenses imposed an undue burden on him to rebut or defend against that evidence.
Finally, Zatto argues the trial court abused its discretion because the jury may have convicted him on the instant charged offenses based, at least in part, on a desire to punish him for the prior uncharged sex offenses. Although that punishment objective is a theoretical possibility, we cannot conclude the trial court abused its discretion by concluding the probative value of the evidence was not substantially outweighed by the danger that the jury might convict Zatto on the instant counts because of a desire to punish him for the uncharged offenses. Furthermore, that possibility was highly unlikely given the trial court's instruction with CALCRIM No. 1191, which stated how the jury should consider the evidence of Zatto's prior uncharged sex offenses and admonished the jury: "Do not consider this evidence for any other purpose." The court did not abuse its discretion by admitting the evidence of Zatto's prior uncharged sex offenses under section 1108. (People v. Miramontes, supra, 189 Cal.App.4th at p. 1097; People v. Dejourney, supra, 192 Cal.App.4th at pp. 1104-1105; People v. Lewis, supra, 46 Cal.4th at p. 1286; People v. Wesson, supra, 138 Cal.App.4th at p. 969; People v. Jennings, supra, 81 Cal.App.4th at p. 1314.)
II
Doe 2 Impeachment Evidence
Zatto contends the trial court erred by allowing the prosecutor to impeach his credibility with evidence of his commission of another offense showing moral turpitude (i.e., the Doe 2 incident). He asserts the prosecutor could not cross-examine him on a matter not raised by his counsel during direct examination.
A
Before trial, the trial court denied the prosecutor's motion to admit evidence of the Doe 2 incident as section 1108 propensity evidence. During trial (out of the jury's presence), the prosecutor stated that if Zatto testified, his credibility would be subject to impeachment with evidence of the Doe 2 incident, which constituted moral turpitude conduct (i.e., sexual battery). The court agreed that if Zatto testified, "then that does necessarily open up some doors with regard to what's out there. If you were to ask him a question along the lines of what the (Jane Doe 2) incident is about and he denies it, then he's subject to be —." The prosecutor interjected, stating: "I just want to bring it up that if he takes the witness stand and testifies, that that becomes fair game for cross-examination. And should he deny it, I have the witness available to rebut it." The court agreed, stating: "That's always the situation if he testifies and doesn't testify in the manner in which some evidence seems to indicate to be contrary to how it is that he's testified."
Zatto testified at trial. On cross-examination, the prosecutor asked him: "Isn't it true that you sexually battered a woman named [Doe 2] . . . in San Diego in 2008; correct?" Zatto replied: "That's not true." The prosecutor then questioned him regarding the details of the Doe 2 incident. However, Zatto testified that he had tripped and fallen into Doe 2 near the elevator and "if my hand touched her butt," he "did not intentionally grab [Doe 2's] butt." The prosecutor then presented the testimony of Doe 2, who testified substantially as discussed above. In defense rebuttal, Zatto testified that when he and Doe 2 were walking into the elevator, he tripped or stumbled and accidentally bumped into her, but did not deliberately touch her buttocks.
B
Zatto first asserts the trial court erred by allowing the prosecutor to improperly cross-examine him on a matter outside the scope of his counsel's direct examination, for the sole purpose to later impeach him with evidence of the Doe 2 incident. However, in the circumstances of this case, the authorities on which Zatto relies either do not support his proposition and/or have been abrogated by Proposition 8 and subsequent case law. For instance, People v. Mayfield (1997) 14 Cal.4th 668, 748, cited by Zatto, stated: "Although it is improper to elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it [citation], the trial court has discretion to admit or exclude evidence offered for impeachment on a collateral matter [citations]." In the circumstances of this case, the prosecutor did not ask Zatto a question about the Doe 2 incident merely for the purpose of contradicting his testimony if he denied it, but rather to directly impeach him with evidence of moral turpitude conduct that would directly bear on his credibility. When a defendant testifies at trial, he is subject to impeachment with evidence of moral turpitude conduct. (See, e.g., People v. Wheeler (1992) 4 Cal.4th 284, 293-295 (Wheeler).) Furthermore, " '[n]o witness[,] including a defendant who elects to testify in his own behalf[,] is entitled to a false aura of veracity.' " (People v. Muldrow (1988) 202 Cal.App.3d 636, 646.) In 1982, Proposition 8 was passed, abrogating various evidentiary rules (e.g., §§ 787, 788) in criminal cases. (Wheeler, at pp. 291-292.) Accordingly, "all relevant evidence, necessarily including misdemeanor conduct relevant to impeachment, shall also be admissible subject to Evidence Code section 352 and other specific exclusionary rules [that are preserved by Proposition 8 or passed by a two-thirds vote of the Legislature]." (Id. at p. 293.) Wheeler concluded: "[I]f past criminal conduct . . . has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as 'relevant' evidence under [former] section 28(d) [of article I of the California Constitution]." (Wheeler, supra, 4 Cal.4th at p. 295.)
Effective November 5, 2008, former article 28(d) of the California Constitution was renumbered article 28(f)(2). (See Historical Notes, 1C West's Ann. Constitution (2012 supp.), foll. art. I, § 28, p. 196.)
Section 210 defines "relevant evidence" as including "evidence relevant to the credibility of a witness . . . having any tendency in reason to prove or disprove any disputed fact . . . ." Because a witness's commission of conduct involving moral turpitude has a tendency to disprove that witness's honesty and veracity, evidence of that conduct is relevant credibility evidence in criminal cases and is admissible, subject to a trial court's discretion under section 352. (Wheeler, supra, 4 Cal.4th at pp. 295-297.) Because a witness's credibility is generally relevant to the jury's consideration of his or her testimony (and possibly other issues in a case), a witness may be impeached by cross-examination or through admission of extrinsic evidence. (See, e.g., §§ 780, 785.) Therefore, the trial court in this case reasonably allowed the prosecutor to impeach Zatto with good faith cross-examination regarding the Doe 2 moral turpitude incident, which, if denied by Zatto, could be proved by the testimony of Doe 2. (Cf. People v. Lepolo (1997) 55 Cal.App.4th 85, 88-91 [trial court properly allowed prosecutor to cross-examine defendant regarding moral turpitude conduct] (Lepolo); People v. Chavez (2000) 84 Cal.App.4th 25, 28-31 [same].) The case on which Zatto primarily relies, People v. St. Andrew (1980) 101 Cal.App.3d 450, is a pre-Proposition 8 case that was, in effect, abrogated by Proposition 8. (See, e.g., Chavez, at p. 31.) Accordingly, that case does not persuade us to reach a contrary result.
Section 780 provides a "jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony . . . , including . . . [¶] . . . [¶] (e) His character for honesty or veracity or their opposites." Likewise, section 785 provides: "The credibility of a witness may be attacked or supported by any party . . . ."
Zatto next asserts that, even if the prosecutor was properly allowed to cross-examine him regarding the Doe 2 incident, the trial court nevertheless erred by allowing him to be impeached with evidence of conduct that did not necessarily constitute moral turpitude. He primarily argues that because he was not actually convicted of any crime involving moral turpitude, that evidence of his uncharged moral turpitude conduct was inadmissible to impeach him. However, he does not cite any persuasive authority in support of his argument. To the contrary, the California Supreme Court has clearly stated that evidence of moral turpitude misconduct, whether or not resulting in a criminal conviction, may be admissible to impeach a witness. (People v. Ayala (2000) 23 Cal.4th 225, 273; Wheeler, supra, 4 Cal.4th at pp. 295-297 & fn. 7; see also Lepolo, supra, 55 Cal.App.4th at p. 89.) Zatto does not persuade us to ignore those statements by the Supreme Court, whether or not they may, as he asserts, be dicta.
Although Zatto cites sections 787 and 788, he apparently does not rely on those exclusionary provisions to support his claim of trial court error. Even if he had relied on them, those statutes were abrogated by Proposition 8, as noted above. (Wheeler, supra, 4 Cal.4th at pp. 291-292.)
He further argues that, even if uncharged moral turpitude misconduct is proper impeachment evidence, the evidence regarding the Doe 2 incident should not have been admitted because it was unreliable and the jury was not instructed to determine whether he had, in fact, committed the crime of sexual battery. However, Zatto does not cite any case holding that moral turpitude misconduct, whether uncharged or charged and resulting in a conviction, must constitute a criminal offense for use as impeachment evidence. On the contrary, case law appears to hold otherwise and allow evidence of moral turpitude misconduct, without any specific criminal offense identified, to impeach a witness in a criminal case. (Lepolo, supra, 55 Cal.App.4th at p. 90 ["The label [of the moral turpitude conduct] is not important—the conduct is."].) In any event, if the jury in this case found Doe 2's testimony more credible than Zatto's testimony regarding the Doe 2 incident, the jury presumably found that his conduct involved moral turpitude. Misdemeanor sexual battery is a crime involving moral turpitude. (People v. Chavez, supra, 84 Cal.App.4th at pp. 27, 29-30.) Accordingly, the trial court properly allowed the prosecutor to impeach Zatto with evidence of the Doe 2 incident, which, if believed by the jury, would support a finding he committed a sexual battery (i.e., moral turpitude misconduct). (Ibid.)
To the extent Zatto argues the jury should have been instructed that it must first find, beyond a reasonable doubt, that he committed the moral turpitude misconduct before it can be used to impeach his credibility, he does not cite, nor have we found, any case in support of that position.
Zatto further argues the trial court abused its discretion under section 352 by allowing the prosecutor to impeach him with evidence of the Doe 2 incident. Although he correctly states that a trial court has discretion under section 352 whether to allow impeachment evidence, he does not carry his burden on appeal to show the trial court failed to exercise that discretion by weighing the relevant factors. (See, e.g., Wheeler, supra, 4 Cal.4th at pp. 295-297 & fn. 7.) Absent any indication in the record to the contrary, we presume the trial court was aware of its discretion and weighed the appropriate factors. Furthermore, the trial court could have reasonably concluded the probative value of the evidence of the Doe 2 incident on Zatto's credibility was not substantially outweighed by undue consumption of time (i.e., a mini-trial on the Doe 2 incident), undue prejudice (e.g., inflammatory nature of evidence), or other section 352 factors. Accordingly, we conclude the court did not abuse its discretion by allowing the prosecutor to impeach Zatto's credibility with evidence of the Doe 2 incident.
C
Assuming arguendo the trial court erred by allowing the prosecutor to impeach Zatto with evidence of the Doe 2 incident, we nevertheless would conclude that error was not prejudicial (i.e., it is not reasonably probable he would have obtained a more favorable result had that evidence been excluded). (§ 354; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The jury heard Sloniker's testimony relating to her observations regarding counts 1 and 2. Contrary to Zatto's apparent assertion, Sloniker's testimony regarding those offenses was not inherently incredible. Furthermore, Sloniker's testimony was, in effect, corroborated by Monson, Weimer, and the school aide, each of whom testified regarding Zatto's inappropriate conduct toward Jane. The jury also heard the taped interview that Remmers conducted with Jane during which she described in detail Zatto's count 3 offense. Although Jane later recanted, the jury reasonably found her initial statement more credible. Furthermore, although Zatto testified and denied the conduct charged in the three counts, the jury reasonably rejected his denials as not credible. The trial court also instructed the jury with CALCRIM No. 316 regarding its consideration of evidence of other misconduct. The jury could have reasonably relied, in part, on that instruction in weighing Zatto's testimony and finding it was not credible based on evidence of his other misconduct. We conclude it is not reasonably probable Zatto would have obtained a more favorable result had the court not allowed the prosecutor to impeach Zatto with evidence of the Doe 2 incident. (Watson, supra, 46 Cal.2d at p. 836.)
The court instructed: "If you find that a witness has committed a crime or other misconduct, you may consider that fact in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
III
CALCRIM No. 375
Zatto contends the trial court prejudicially erred by instructing the jury with CALCRIM No. 375 that evidence of the Doe 2 incident could be considered on the issue of his intent to commit the instant offenses.
A
As discussed above, the trial court, before trial, denied the prosecutor's motion to admit evidence of the Doe 2 incident as section 1108 propensity evidence. However, during trial the court allowed the prosecutor to impeach Zatto's credibility by questioning him regarding the Doe 2 incident and presenting Doe 2's testimony on that incident, which constituted moral turpitude conduct (i.e., sexual battery).
Apparently without objection by Zatto, the trial court instructed the jury with CALCRIM No. 375. That instruction stated in part that if the jury found, by a preponderance of the evidence, that Zatto committed the offense of sexual battery on Doe 2, the jury may, but was not required to, consider that evidence for the limited purpose of whether Zatto "acted with the intent to arouse, appeal to, or gratify the lust, passion, or sexual desire of" himself or Jane. It further instructed that in evaluating the evidence, the jury should consider the similarity or lack of similarity between the Doe 2 incident and the charged offenses. It instructed the jury not to consider the Doe 2 evidence for any other purpose.
The trial court instructed: "The People presented evidence that [Zatto] committed the offense of Sexual Battery on [Doe 2] that was not charged in this case, a violation of [Penal Code] section 243.4(e)(1). [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that [Zatto] in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that [Zatto] committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] 1. [Zatto] acted with the intent to arouse, appeal to, or gratify the lust, passion, or sexual desire of [himself or] said child. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] If you conclude that [Zatto] committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [Zatto] is guilty of the crimes charged in Counts 1, 2 or 3. The People must still prove each charge beyond a reasonable doubt."
B
Zatto asserts the trial court erred in instructing with CALCRIM No. 375 because the Doe 2 incident and the charged offenses were not sufficiently similar to support the inference that he probably had the same intent in each instance. (See, e.g., § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-404.) Zatto asserts: "[I]t cannot be reasonably argued that making out with a child, caressing her buttocks and breasts, and digitally penetrating her vagina while masturbating is substantially similar to touching an adult woman's buttocks while entering an elevator." He further argues the court erred by instructing with CALCRIM No. 375 because it was inconsistent with its instruction with CALCRIM No. 316 and therefore confused the jury. The former instruction stated the jury could consider the Doe 2 evidence only on the issue of Zatto's intent in committing the charged offenses, while the latter instruction stated the jury could consider the Doe 2 evidence in evaluating his credibility.
Assuming arguendo the trial court erred by instructing with CALCRIM No. 375, we conclude that error was not prejudicial. In determining the prejudicial effect of an erroneously given instruction, we apply the Watson standard of prejudice (i.e., whether it is reasonably probable the defendant would have obtained a more favorable result had the instruction not been given). (People v. Prieto (2003) 30 Cal.4th 226, 249; Slaughter, supra, 27 Cal.4th at p. 1199; Watson, supra, 46 Cal.2d at p. 836.) Assuming CALCRIM No. 375 was erroneously given, any harm to Zatto was, at most, minimal. That instruction stated the jury could consider evidence of the Doe 2 offense only if it found, by a preponderance of the evidence, Zatto committed that offense. Furthermore, that instruction stated the jury then could, but was not required to, consider that evidence only for the limited purpose of determining whether Zatto had the requisite intent in committing the charged offenses. It also instructed that conclusion (if made) was only one factor to consider along with all of the other evidence presented at trial and was not sufficient, by itself, to prove Zatto's guilt of the charged offenses, which must be proved by the People beyond a reasonable doubt.
We reject the People's assertion that Zatto forfeited or waived that contention by not objecting to the instruction at trial. (Pen. Code, § 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."]; People v. Slaughter (2002) 27 Cal.4th 1187, 1199 ["Although defendant did not object in the trial court to this instruction, the propriety of the instruction nonetheless is reviewable on appeal to the extent it affects his substantial rights."] (Slaughter).)
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More importantly, the evidence presented by the prosecutor showing Zatto's guilt was strong in comparison to the evidence presented by the defense. The jury heard Sloniker's testimony regarding her observations regarding counts 1 and 2. Sloniker's testimony regarding those offenses was not inherently incredible. Furthermore, Sloniker's testimony was, in effect, corroborated by Monson, Weimer, and the school aide, each of whom testified regarding Zatto's inappropriate conduct with Jane. Therefore, the jury reasonably found Sloniker's testimony was credible. The jury also heard the taped interview that Remmers conducted with Jane during which she described in detail Zatto's count 3 offense. Although Jane later recanted, the jury reasonably found her initial statement was credible and her recantation was not credible. Furthermore, although Zatto testified and denied the conduct charged in the three counts, the jury reasonably rejected his denials as not credible. The trial court instructed the jury with CALCRIM No. 220 on the reasonable doubt standard of proof and CALCRIM No. 226 on its consideration of testimony of witnesses. The court also instructed the jury with CALCRIM No. 316 regarding its consideration of evidence of other misconduct. The jury could have reasonably relied, in part, on that instruction in weighing Zatto's testimony and finding it was not credible based on evidence of his other misconduct. We discern little, if any, conflict between CALCRIM Nos. 316 and 375. The former instruction addresses the credibility of a witness, while the latter addresses consideration of evidence of other misconduct on the element of intent. Considering the instructions as a whole, we conclude it is not reasonably probable Zatto would have obtained a more favorable result had the court not instructed the jury with CALCRIM No. 375. (People v. Prieto, supra, 30 Cal.4th at p. 249; Slaughter, supra, 27 Cal.4th at p. 1199; Watson, supra, 46 Cal.2d at p. 836.)
IV
Sufficiency of the Evidence
Zatto contends there is insufficient evidence to support his convictions of the three offenses.
A
"The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ' "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.(People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) Furthermore, "[a]n appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial [or other] evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) If the evidence and reasonable inferences therefrom support the trier of fact's finding, an appellate court's belief that the evidence could also reasonably support a contrary finding does not warrant reversal of the judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504; People v. Bean (1988) 46 Cal.3d 919, 933.)
"[W]hen a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, . . . [the defendant] must affirmatively demonstrate that the evidence is insufficient." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
B
Zatto contends there is insufficient evidence to support his convictions on counts 1, 2 and 3, each of which charged he committed a lewd act on Jane, a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) Penal Code section 288, subdivision (a), provides: "[A]ny person who willfully and lewdly commits any lewd or lascivious act, . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty . . . ."
We conclude there is substantial evidence to support Zatto's convictions on counts 1, 2 and 3. Regarding count 2, Sloniker testified that in September 2009 she saw Zatto in the Starbucks shop, rubbing and caressing Jane's buttocks and they were hugging "very tightly." They were kissing each other on the lips with open mouths and held hands with their fingers interlocked. There was a very sexual content to their behavior. Regarding count 1, Sloniker testified that in October 2009 she saw conduct similar to that she saw before. Zatto and Jane hugged each other very closely and kissed each other on the lips. Jane told Zatto, "I love you so much." Zatto replied, "I love you too. And if you're a bad girl, I will smack that ass." During that interchange, they were facing each other and embracing, with Jane's arms wrapped around Zatto's neck and his arms wrapped around her waist. Zatto was rubbing Jane's lower back just above her buttocks. Although Sloniker's testimony, by itself, could have constituted sufficient evidence for the jury to convict Zatto of counts 1 and 2, other witnesses testified regarding similar conduct between Zatto and Jane that could have had the effect of corroborating Sloniker's testimony. Monson testified she saw Jane sitting on Zatto's lap while he stroked her back and played with the string of her swimsuit. Monson thought that conduct was inappropriate and it made her uncomfortable. Weimer testified she saw Jane sitting on Zatto's lap while he rubbed her arms in a way a husband would touch his wife. The school aide testified she saw Jane sitting on Zatto's lap while he caressed her lower back (to the top of her buttocks) in a way a husband or boyfriend would. The prosecution also presented video recordings found on Zatto's computer showing Jane sitting on a toilet and walking in a parking lot with the focus on her buttocks.
Based on our review of the whole record, we conclude there was substantial evidence to support the jury's findings that during the September and October 2009 incidents Zatto touched Jane with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or Jane in violation of Penal Code section 288, subdivision (a). To the extent Zatto cites evidence or inferences therefrom favorably to his defense, he misconstrues and/or misapplies the substantial evidence standard of review. We reject his assertion that Sloniker's testimony was not credible. It was the function of the jury, and not the appellate court, to weigh the credibility of the witnesses who testified at trial. (Snow, supra, 30 Cal.4th at p. 66.)
Regarding count 3, Remmers testified that he interviewed Jane in a school conference room. A recording of that interview was played for the jury. After initially denying Zatto inappropriately touched her, Jane told Remmers that when she was 10 years old Zatto pulled her into his bedroom and closed the door. He sat on the bed with Jane, removed his pants, laid her down, and began "rubbing on [her] and stuff." Zatto put his hands under Jane's clothing and touched her breasts and vagina. He put his finger inside her vagina and "play[ed] with himself" while doing it. After about two minutes, Jane told Zatto to stop, pushed him away, and got off the bed. She told Zatto that if he tried to do it again she would tell her mother and call the police. After Jane left the room, her mother arrived home and Zatto pulled up his pants. Based on our review of the whole record, we conclude there is substantial evidence to support Zatto's conviction on count 3 (i.e., that Zatto touched Jane with intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or Jane in violation of Pen. Code, § 288, subd. (a)). Although Jane subsequently recanted and testified at trial that Zatto never touched her inappropriately, the jury reasonably rejected her recantation and found credible her statements to Remmers during her initial interview. It is the function of the jury, and not the appellate court, to weigh the credibility of the witnesses who testified at trial. (Snow, supra, 30 Cal.4th at p. 66.) To the extent Zatto cites evidence or inferences therefrom favorably to his defense, he misconstrues and/or misapplies the substantial evidence standard of review. Accordingly, there is substantial evidence to support Zatto's convictions on counts 1, 2 and 3. (Ibid.; People v. Maury, supra, 30 Cal.4th at p. 396; People v. Abilez, supra, 41 Cal.4th at p. 504; People v. Bean, supra, 46 Cal.3d at p. 933; People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.)
DISPOSITION
The judgment is affirmed.
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McDONALD, J.
WE CONCUR:
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NARES, Acting P. J.
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AARON, J.