Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part, reversed in part, and remanded with directions. (Super. Ct. No. 07NF2125)
The opinion of the court was delivered by: Fybel, J.
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Defendant Charles Edward Harvey was convicted by a jury of committing continuous sexual abuse of his eight-year-old female cousin K.F. in violation of Penal Code section 288.5, subdivision (a). (All further statutory references are to the Penal Code unless otherwise specified.) Defendant contends the trial court erred by (1) admitting evidence of defendant's prior similar instances of sexual conduct, under Evidence Code section 1101, subdivision (b), offered to prove defendant's intent; (2) imposing the 16-year upper term sentence based on "legally inapplicable aggravating factors"; and (3) imposing a $300 fee under a version of section 290.3, which was not in effect at the time of the commission of the offenses.
We affirm the judgment except we reverse the imposition of the fine under section 290.3 and remand that issue to the trial court with directions. The trial court did not err in admitting testimony, over defendant's relevancy and Evidence Code section 352 objections, that defendant had engaged in the same sexual conduct that he engaged in with K.F. with another eight-year-old female cousin when defendant was 12 years old. The testimony was relevant to prove defendant's intent to sexually abuse K.F., and, although the prior sexual conduct occurred many years earlier, the testimony was brief and described sexual conduct far less egregious than defendant's admitted sexual abuse of K.F. Defendant otherwise failed to show the probative value of the prior sexual conduct evidence was substantially outweighed by the probability it would create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
The trial court relied on aggravating factors set forth in rule 4.421 of the California Rules of Court in imposing the upper term sentence. Although the court also relied on some improper factors, it is not reasonably probable the trial court would have imposed a lesser sentence had it known that some of its reasons were improper.
As conceded by the Attorney General, the trial court erred by imposing a $300 fine instead of a $200 fine under the applicable former version of section 290.3. As pointed out by the Attorney General, however, it appears the court did not impose the mandatory penalty assessments, state surcharge, and construction penalty, all of which attach to that fine, and when combined with the fine, total $640. Because the section 290.3 fine is contingent on defendant's ability to pay and the record does not show the trial court made a determination as to defendant's ability to pay the $640, we reverse the judgment solely as to the section 290.3 fine and remand to the trial court to hold a hearing to determine defendant's ability to pay such a fine and its accompanying assessments, surcharge, and penalty.
When K.F. was in the second grade, she lived in a two-bedroom apartment with her mother, father, brother, grandmother, uncle, and defendant, who is K.F.'s first cousin once removed. K.F.'s mother and defendant were cousins and "best friends" who had grown up together; they were "extremely close."
K.F. and her uncle slept on separate couches in the living room; defendant usually slept on the floor. When K.F. was about seven or eight years old, defendant began touching K.F.'s vaginal area after she lay down on the couch to go to sleep.*fn1 Defendant also placed one or more of his fingers inside her vagina. Sometimes K.F. had already fallen asleep and would wake up to defendant touching her. K.F. would sometimes pretend she was asleep when defendant began to touch her and she would move or grunt causing him to move away from her.
K.F. testified defendant touched her "a couple times a week" and then stopped when she was nine years old with one exception. When K.F. was 11 years old, she spent the night at her uncle's apartment where defendant then lived and woke up to find defendant touching her vaginal area with his fingers.
K.F. testified defendant also placed K.F.'s hand on his penis "over 5 or 10 times." She also stated that defendant would sometimes lie down on top of her ...