APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed. (Super. Ct. No. SCD210230)
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
A jury convicted Martin Felipe Miramontes of one count of sodomy with a child ten years old or younger (Pen. Code,*fn1 § 288.7, subd. (a)), four counts of oral copulation/ sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b)), and four counts of committing a lewd act on a child (§ 288, subd. (a); plus an attempt count of the latter). Additionally, Miramontes was convicted of four counts of using harmful matter to seduce a child (§ 288.2, subd. (a)), and one count of possession of child pornography (§ 311.11, subd. (a)).
The jury found true further allegations as to nine of the counts that there were multiple victims (§ 1203.066, subd. (a)(7)). Likewise, as to four of the counts, the jury found true the allegations that Miramontes had committed an offense described in section 667.61, subdivision (c) against more than one victim (§ 667.61, subds. (b), (c) & (e)). Next, regarding eight of the counts, the jury found it was true that Miramontes had engaged in substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)). Regarding seven of the counts, the jury found it was true that Miramontes had used harmful matter depicting sexual conduct (child pornography; § 1203.066, subd. (a)(9)).
The court sentenced Miramontes to a total prison term of 146 years to life, with a 25-years-to-life term imposed for the sodomy count, and 15-years-to-life terms for eight of the other counts, plus a one-year term for one conviction of a lewd act upon a child. (§ 288, subd. (a).) Additionally, concurrent terms were ordered for five other counts. (§ 288.2, subd. (a), harmful matter; § 311.11, subd. (a), child pornography.)
Miramontes appeals, contending the trial court prejudicially abused its discretion in admitting evidence of uncharged sexual offenses under Evidence Code section 1108, over his Evidence Code 352 objections (about his 2003 lewd acts upon two children in Mexico). Along with this assertion, Miramontes claims Evidence Code section 1108 violates his federal due process rights, by permitting the use of propensity evidence to convict. (But see People v. Falsetta (1999) 21 Cal.4th 903, 922 (Falsetta).) Finally, Miramontes claims the use of CALCRIM No. 1191, regarding the uncharged offenses, denied him his federal rights to due process and a fair trial. (But see People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford).)
On this record, we determine the trial court did not abuse its discretion when it admitted evidence of the uncharged sexual offenses under Evidence Code section 1108, over Miramontes's objections made under Evidence Code section 352. Moreover, there is no basis for this court to reverse the judgment for any statutory or due process violations involving that testimony or the jury instructions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Miramontes does not challenge the sufficiency of the evidence to support his various convictions, and we may therefore set out the facts regarding those offenses in a summary fashion, for the purpose of evaluating his evidentiary error claims about similar uncharged conduct. In doing so, we refer to the young victims of the 2007 sexual misconduct as L. (Eduardo L.), D. (Eduardo D.) and M. (Javier M.). Likewise, as to the 2003 uncharged molestation incidents in Mexico, we refer to the young victims as B. (B. B.) and A. (Alex L.).
B. The Prosecution Case: Three Victims
Basically, the evidence showed that in 2007, Defendant was in his 40's, and was living in San Diego in an apartment complex near the residences of the three young male victims, L. (age 7), D. (age 12), and M. (age 11). In 2003, Miramontes was living in Mexico in a neighborhood near B. (then age 7) and her male cousin A. (also age 7). He "befriended" all of these youngsters and inappropriately touched and communicated with them in various ways, as will next be described.
In the fall of 2007, Miramontes was living in San Diego with his parents and a disabled sister. L. was seven years old and lived in the same apartment complex. L. testified at trial that Miramontes often invited him to his bedroom and showed him pornographic movies with boys and adults, told him that was good behavior, and then had him take off his clothes and touched him all over his body. Sometimes D. or M. was also there and participated in such conduct. Miramontes kissed L.'s neck, penis and anus, and asked L. to suck or kiss his penis. Miramontes kept a plastic penis in the closet that he asked L. to kiss. Miramontes put the plastic penis into his own anus, and also into L.'s anus and M.'s anus.
Miramontes gave L. a dollar and promised him a CD and a Playstation if L. would suck his penis, but he gave L. only the CD. Miramontes showed L. how he would shower his own disabled sister and put his finger into her anus. The last day they were together, Miramontes placed his finger and penis into L.'s anus. That night, L.'s mother was giving him a bath and noticed a bruise on his thigh and bleeding from his anus. She discovered he was in pain and could not walk, and reported the incidents to police the next day, November 5, 2007.
At first, L. told police and the interviewing social worker from the Health and Human Services Agency (the Agency) that he knew what bad touching was and no one had done anything like that to him. A forensic medical examination November 9, 2007 disclosed that L. had a deep tear in his anus that had healed over time, consistent with an injury, rather than any natural causes. L.'s mother reported L. had recently been having heart palpitations, bedwetting and severe bowel control problems.
D. was 12 years old in the fall of 2007, and lived in the same apartment complex as did Miramontes and L. When they were together, Miramontes talked to L. and D. about sex and how it was good for boys to have sex together, and he showed them pornographic movies. Miramontes squeezed the penis of D., and another time, put his hands down his own pants and then wiped a wet, sticky substance on D.'s cheek. Miramontes told the two boys that he would kill their mothers if they told anyone. D. and his mother also went to the police station to report Miramontes's activities.
3. Counts 13-14, M., and 16, all Three Youths
M. was 11 years old in 2007 and lived near the apartments where Miramontes lived. When M. was playing with L. and D., Miramontes sometimes approached them and showed them child pornography involving boys. Miramontes offered the boys money to engage in sex acts with each other or with him, while he watched, and he told M. that he liked to rape little kids.
One time, M. saw Miramontes touching another boy's penis and buttocks, and then Miramontes grabbed M.'s penis and touched his stomach area. Miramontes told the boys that if they told anyone about these activities, Miramontes would kill their mothers. Sometime later, M. learned that L. and his mother had told the police about Miramontes's activities.
Investigators obtained a search warrant for Miramontes's room and found some of the items that had been described by the three victims, including toys, the plastic penis, thong underwear, computer photographs and videos of boys involved in sexual acts, a camera and cell phone, and photographic prints of boys involved in sexual acts. Investigators reviewed Miramontes's computer chat logs and found sexual materials and sexual references to Miramontes's sister.
L., D. and M. each testified at trial, explaining they knew the difference between truth and a lie, and describing the ...