APPEAL from a judgment of the Superior Court of El Dorado County, Eddie T. Keller, Judge. Vacated in part and remanded for further proceedings; otherwise affirmed. (Super.Ct.No. P06CRF0546).
The opinion of the court was delivered by: Scotland, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury found defendant Ralph Escudero guilty of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)), and he was sentenced to a term of eight years in state prison and ordered to pay victim restitution. He appeals.
In the published part of this opinion, we reject defendant's claim that the trial court erred in allowing the introduction of evidence of defendant's uncharged acts of sexual assault against two adult women. In his view, those crimes against adult women did not have any tendency in reason to prove he had a propensity to commit lewd and lascivious acts with a girl when she was seven years old. As we will explain, the trial court did not abuse its discretion in concluding that the other crimes had substantial probative value despite the differences in ages of the victims.
Consistent with common experience, the Legislature has found that persons who commit sex offenses often have a propensity to commit sex crimes against more than one victim. For this reason, the Legislature enacted Evidence Code section 1108, subdivision (a), which provides that, in a criminal action in which the defendant is accused of a sex crime, evidence of the defendant's commission of other sex crimes is admissible unless the trial court exercises its discretion to exclude the other crimes evidence pursuant to Evidence Code section 352. Thus, such evidence is presumed to be admissible to assist the trier of fact "in evaluating the victim's and the defendant's credibility." (People v. Falsetta (1999) 21 Cal.4th 903, 911.)
Here, the evidence demonstrated that defendant took advantage of vulnerable females regardless of their ages, sexually assaulting them when it was particularly risky to do so. Accused of molesting a girl when she was seven years old, defendant was shown to have also sexually assaulted teenage girls and two adult women. This other sex crimes evidence was highly probative of his intent to touch the young girl for sexual gratification, thus dispelling any notion that the touching was the result of accident or mistake. Defendant is simply wrong in claiming that, "[o]ther than sheer speculation, the record is devoid of evidence showing that a man who allegedly forcibly and sexually assaults adult women also would be inclined to sexually molest a young child." As illustrated by this case, persons with deviant sexual urges do not always limit their sex crimes to victims of the same age group. Thus, evidence of a defendant's sex offenses against adult women is probative to the question of the defendant's guilt of committing sex crimes against a young girl. We also conclude that testimony regarding his sexual molestation of teenage girls was properly allowed into evidence.
In the unpublished part of our opinion, we conclude the matter must be remanded for the trial court to hold a victim restitution hearing.
When the victim was four years old, defendant moved into her mother's house, where the victim and her 15-year-old sister also lived. The mother knew that defendant had been charged with rape the year before. The sister moved out after she complained that defendant made sexual advances but her mother refused to believe that defendant did so.
Although the victim had her own room, her mother allowed the victim to sleep in the bed with her and defendant, despite the fact that defendant always slept naked.
On one occasion when the victim was seven years old and sleeping with her mother and defendant, she awoke to find her pajama bottoms and underwear had been taken off. Defendant grabbed her hand, put it on his penis, and touched her "private area," "just moving his hand around." When she tried to get up, he held her down and told her, "It is okay." He did the same thing on another occasion. The victim did not tell anyone when it happened because she was scared.
Later that year, the mother of the victim's best friend heard the girls whispering and her daughter tell the victim, "It's okay, talk to my mom." When asked if she needed to talk about something, the victim said that defendant had touched her inappropriately. The victim did not want the woman to report the misconduct because the victim was afraid. The woman urged the victim to tell her mother and grandparents.
Several months later, the victim told her maternal grandmother that defendant had molested her, but her grandmother did nothing about it. After learning of the molestation from the victim, her mother made defendant move out of the house but continued to see him socially and did not report the molestation.
Two years later, after defendant threatened to commit suicide because he was not living in the house, the mother allowed him to move back in with her and the victim, who was then 10 years old.
While visiting her father and watching television with him and his parents, the victim saw a news report about a girl her age that had been raped and killed. The victim began crying, asked to talk to her paternal grandmother in private, and then revealed that defendant had molested her. The grandmother told the victim's father, who filed a report with law enforcement.
Accusations of Other Sexual Misconduct
A. Testimony of the Victim's Sister and her Teenage Friends
The victim's older sister recalled numerous instances when defendant acted inappropriately with her and her friends while they were 14 to 16 years old. He made sexually suggestive and rude comments, including telling them their bodies were developing well. He would look at their bodies and "his eyes were always wandering towards [their] chests." Defendant would grab the sister's legs and try to rub her thighs. He would offer and give her back massages with lotion when her mother was at work or out of the room. On one occasion, when the sister was shopping for a homecoming dress, defendant told her the dress she tried on made her breasts look really good and she was "sexy." After telling her mother that she was uncomfortable with defendant's behavior, the sister moved out to live with her father because her mother would not believe her. She felt guilty leaving the victim behind, although she never saw defendant do anything inappropriate to the victim.
Often, defendant would hug the victim's sister and her friends. He would come up behind them and grab them around the waist under their bust lines. The friends testified that the hugs felt sexual, not friendly. Defendant would also grab and caress their upper thighs. He did so to one of the girls on 10 to 15 occasions; each time, she would push his hand off or step away. Another girl said that defendant put his hand on her thigh and occasionally rubbed or caressed it. She would try to cross her legs in a way to prevent him from doing this. She also testified that defendant would stare at the girls' chests and say they looked "sexy."
While the victim's sister lived in the home, defendant called her bedroom the "orgy room" and would come in when she and other girls were there. He provided them with alcohol on numerous occasions. Her mother knew that defendant was giving the girls ...