APPEAL from a judgment of the Superior Court of San Diego County, (Super. Ct. No. SCD164743) Cynthia Bashant and Leo Valentine, Jr., Judges.
The opinion of the court was delivered by: O'rourke, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Hermelindo Olea of four counts of committing a lewd act upon a child, his stepdaughter, C. B. (Pen. Code, § 288, subd. (a)). He separately pleaded guilty to five counts of committing the same crime in case number SCD208721. The court sentenced Olea to 24 years in prison as follows: 8 years for his convictions in this case and 16 years in the other case.
Olea contends: (1) the prosecutor untimely disclosed to the defense propensity evidence related to his uncharged sexual offenses, thus depriving him of due process of law; (2) the court denied his request for a continuance in violation of his constitutional rights to due process, effective assistance of counsel and confrontation; (3) the court prejudicially abused its discretion in admitting the propensity evidence under Evidence Code*fn1 section 1108 over his objection made under section 352, and in violation of his constitutional rights to equal protection and due process; (4) the court's instruction with CALCRIM No. 1191 violated his federal due process rights; (5) if we conclude his claim is forfeited, his attorney provided ineffective assistance of counsel by failing to object to the propensity evidence and instruction with CALCRIM No. 1191; (6) the court erroneously admitted hearsay statements the victims made to a district attorney investigator; (7) the court erroneously admitted evidence of a prior domestic violence incident under section 1101 over his section 352 objection; and (8) the court erroneously instructed with CALCRIM No. 220 regarding reasonable doubt. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Olea does not challenge the sufficiency of the evidence to support his 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. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.)
At an August 17, 2009 status conference, the People sought to bring additional charges against Olea based on statements recently obtained from three new victims. The court denied the motion, advised the parties to be prepared for trial on September 5, 2009, and scheduled a hearing on in limine motions regarding "any [section] 1108 requests" for September 4, 2009.
As scheduled, the People moved in limine to introduce testimony about Olea's prior uncharged sexual offenses against three of the victim's sisters under sections 1101 and 1108. The prosecutor explained that the victim's sisters delayed in disclosing Olea's sexual molestation of them to her office's investigators, adding, "This family has been totally non[-]cooperative all the way up until the very day that they disclosed and I told [defense attorney] immediately. So she and I found out virtually almost at the very same time."
Olea opposed the motion and requested a continuance, arguing the motion was untimely because the defense was denied 30 days notice required by Penal Code section 1054.7 for disclosure of the propensity evidence, and the defense lacked sufficient time to investigate it. The defense attorney advised the court that, "[t]he witnesses . . . are all in [Los Angeles]. They are not cooperative."
The trial court denied the continuance on grounds Olea was entitled to a speedy trial, and defense counsel had received almost 30 days notice regarding the propensity evidence. Further, the court had specified at the August 17 status conference that it would abide by the trial date and not grant a continuance. The court ruled that the propensity evidence was admissible under sections 1108 and 352 because the victims were Olea's stepdaughters, he touched them in similar ways and they were similar in age to C. B., except an older sister. It ruled that the testimony was extremely relevant and would not consume undue time. The court observed in passing that to the extent Olea was claiming mistake or accident, the testimony also was admissible under section 1101.
C. B., who was 18 years old at the time of trial, testified that when she was around 10 or 11 years old and in fifth or sixth grade, she lived with her mother, her brothers and Olea, in a motor home in Long Beach, California. Approximately a couple of times a week, he touched her breasts and her vagina with his hands and mouth. Approximately three times a week he touched her bottom with his fingers. They moved to San Diego, and he generally continued the pattern of sexual conduct with her. He kissed her on the mouth about twice. Once he also tried to have sexual intercourse with her in San Diego. She did not tell anyone about these incidents because she was scared he would hit her and her brothers and carry out his threat to hurt her mother.
F. B. testified that when she lived with her mother and Olea, he touched her breasts a few times, starting in 1990, when she was about 11 years old. When she was 13, he fathered her child, although he denied it. She did not tell her mother because she was afraid he would hit her.
N. B. was 26 years old at the time of trial and testified that in 1990, when she was around 10 or 11 years old, Olea touched her breasts and put his fingers in her vagina. In a second incident, he put his penis in her vagina. She did not tell anyone about it because she was afraid he would hit her and her brothers like he had threatened.
L. B. testified that once, when she was 25 years old, she visited her mother's home, and Olea tried to touch her breasts. She asked him why he had done that and he said because she was not his daughter. L. B. did not return to her mother's house after that incident.
Olea did not testify at trial and the defense called no witnesses. The defense cross-examined C. B. regarding her recollection of events, her truthfulness, and her failure to report the molestation incidents earlier, and cross-examined her sisters about whether they liked Olea, and their delay in reporting the molestation incidents. During closing arguments, the defense theory of the case was that C. B. was starving for attention and therefore lied about Olea's actions to get attention; further, her sisters were motivated by hatred of Olea.
Olea contends his due process rights to fair notice and an opportunity to investigate and prepare a defense were violated because he did not receive the propensity evidence proffer within the 30-day period required by Penal Code section 1054.7. He further contends the denial of the continuance infringed his constitutional rights to due ...