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The People v. Hermelindo Olea

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HERMELINDO OLEA, DEFENDANT AND APPELLANT.

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.

P. v. Olea

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Affirmed.

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.

I.DISCUSSION

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 process, effective assistance of counsel and confrontation and the error was reversible per se.

A. Applicable Law

Under Penal Code section 1054.1, the prosecuting attorney shall disclose to the defendant or his or her attorney "[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged." (Pen. Code, § 1054.1, subd. (c).) When the prosecution seeks to present evidence of a defendant's commission of other acts of sexual offense, it is statutorily required to "disclose" that evidence to the defendant under Penal Code section 1054.7. (Evid. Code, § 1108, subd. (b).) The disclosure of such evidence must be made "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (Pen. Code, § 1054.7.) "If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (Ibid.) The purpose of section 1108's disclosure requirement is to protect the defendant from unfair surprise and provide adequate time for preparation of a defense. (People v. Soto (1998) 64 Cal.App.4th 966, 980.)

Analysis

The timing of the prosecutor's disclosure of propensity evidence did not deprive Olea of due process of law. Under Penal Code section 1054.7, admission of evidence made available to the prosecutor within 30 days may be admitted for good cause shown. Here, as the trial court found, good cause existed for the late disclosure of the proffer regarding the stepdaughters' testimony and the prosecutor disclosed this discovery to the defense as soon as it was obtained, in accordance with Penal Code sections 1054.1 and 1054.7. Nothing in the record suggests such acquisition was unreasonably delayed. We find no violation of the relevant statutes. (See, e.g., People v. Panah (2005) 35 Cal.4th 395, 459-460 (Panah) [reaching similar conclusion as to new report that pathologist prepared on eve of testimony after reexamining microscopic slides at prosecutor's request].)

The court's ruling did not deprive defendant of his constitutional rights to present a defense, to procedural and substantive due process, or to effective assistance of counsel. " 'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." ' " (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) "Necessarily, then, we reject the edifice of constitutional error that defendant constructs upon his claim of discovery violation." (Panah, supra, 35 Cal.4th 395 at p. 460.)

B.A continuance in a criminal case may be granted only for good cause. (Penal Code, § 1050, subd. (e).) Whether good cause exists is a question for the trial court's discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court must consider " ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (Ibid.) While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence (ibid.), the trial court may not exercise its discretion "so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." (People v. Sakarias (2000) 22 Cal.4th 596, 646.) A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal. (People v. Doolin (2009) 45 Cal.4th 390, 450.)

The defense did not specify the length of the continuance it sought, and made no showing that if granted a continuance it was likely to obtain the benefit of being able to interview C. B.'s sisters. To the contrary, defense counsel specifically admitted that the sisters were not cooperative. Further, defense counsel told the court at the motion in limine hearing that, according to Olea, C. B.'s sisters had made false reports, but defense counsel did not specify any efforts made to investigate those reports. In any event, we note that defense counsel took the opportunity to engage C. B.'s sisters in thorough cross-examination. The record does not show that Olea suffered disadvantage from the reduced time to investigate the newly acquired propensity evidence.

We conclude that the court did not abuse its discretion in denying his request for a continuance of unspecified length. (See Panah, supra, 35 Cal.4th 395, 460.) Neither the prosecutor nor the court sought to deny defendant an opportunity to investigate the new victims' statements. The record supports the court's determination that almost three weeks before trial the prosecutor provided Olea notice of the newly acquired evidence. Under the circumstances, the court could properly find no good cause for delaying the start of trial. (People v. Wilson (2005) 36 Cal.4th 309, 352.)*fn2

II.Relying on People v. Harris (1998) 60 Cal.App.4th 727 (Harris), Olea contends the trial court prejudicially erred in admitting into evidence propensity evidence from C. B.'s three sisters under section 1108 over his section 352 objections. He argues the sisters' testimony involved more significant and intimate sexual contact than C. B. suffered; the incidents with the sisters were remote, having occurred 10 years before the incidents alleged in C. B.'s case; and in the case of L. B., she was 25 years old when he touched her breasts.

Applicable Law

Subject to section 352, section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type, and essentially allowing such evidence to be used in determining whether the defendant is guilty of the current sexual offense charge.

(§ 1108, subd. (a).) Before section 1108 was enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct. (See § 1101*fn3 ; People v. Falsetta (1999) 21 Cal.4th 903, 911, 913 (Falsetta).) However, section 1108 created a statutory exception to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses in cases charging such conduct, for proof of the defendant's disposition to commit the charged offense. (Falsetta, supra, at p. 911.) The California Supreme Court has ruled that section 1108 is constitutional. (Falsetta, supra, at pp. 916-922.)

To be relevant on the issue of intent, uncharged crimes need only be sufficiently similar to a charged offense to support the inference that the defendant probably harbored the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).)

However, because section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence upon whether it is admissible under section 352,*fn4 any valid objection to such evidence, as well as any derivative due process claim, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [section 352] is essential to protect a defendant's due process right to a fundamentally fair trial." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) As stated in Falsetta, in evaluating such section 1108 evidence under section 352, "trial judges 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 . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.) In evaluating such evidence, the court must determine "whether '[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.' " (Harris, supra, 60 Cal.App.4th at pp. 737-738.)

On appeal, we review the admission of other acts or crimes evidence under section 1108 for an abuse of the trial court's discretion. (Kipp, supra, 18 Cal.4th at p. 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (People v. Fitch (1997) 55 Cal.App.4th 172, 183.)

The weighing process under section 352 "depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (Jennings, supra, 81 Cal.App.4th at p. 1314.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.) 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.' " (Kipp, supra, 18 Cal.4th at p. 371.) We will only disturb a trial court's ruling under section 352 when the court has exercised its discretion in a manner that has resulted in a miscarriage of justice. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)

Under these standards, and viewing the evidence in the light most favorable to the trial court's ruling (see People v. Carter (2005) 36 Cal. 4th 1114, 1148), we cannot conclude the trial court's decision to admit testimony from C. B's sisters regarding Olea's prior acts on them was arbitrary, capricious, manifestly absurd, or exceeded the bounds of reason. (People v. Mullens (2004) 119 Cal.App.4th 648, 658.) We disagree the facts of Olea's actions against C. B.'s sisters were so inflammatory or prejudicial as to preclude their admission in this case on the issue of his propensity to commit such acts. None of the prior acts involved extreme violence or severe injuries as did the defendant's prior conduct in Harris, supra, 60 Cal.App.4th 727, on which Olea relies.

In Harris, the trial court was held to have prejudicially abused its discretion in admitting an incomplete and distorted version of the defendant's prior act involving brutal sexual mutilation in a case in which the defendant had kissed, fondled and sexually preyed upon emotionally and physically vulnerable women, crimes held to be of a "significantly different nature and quality." (Harris, 60 Cal.App.4th at p. 738.) Here, Olea's acts with C. B. were not of a significantly different nature and quality than his conduct toward the other victims; in both his present and prior acts he improperly touched his stepdaughters. The acts mainly occurred when the girls were approximately the same age (between 10 and 11) and in the family home.

We recognize that the evidence showed Olea's prior acts with F. B. and N. B. involved sexual intercourse and, in F. B.'s case, pregnancy. Although these acts were more egregious than the present offenses, the prior acts were not unduly inflammatory or so extreme as to warrant their exclusion. Evidence of prior sex offenses necessarily involves unpleasant facts of sexual misconduct. Separately, we realize that L. B. was not a preteen like her sisters when Olea touched her inappropriately, but in other respects his conduct shared these similarities to the other incidents: he was her stepfather, and he touched her breasts when she was at her mother's home. L. B.'s testimony confirmed Olea believed, based on his statement to her, that he could touch the victims sexually because they were not his biological daughters. (Accord, People v. Mullens, supra, 119 Cal.App.4th at p. 660 [holding that under section 1108, dissimilarities in alleged incidents goes to weight, not admissibility, of evidence].)

We further reject Olea's assertion that the past incidents were too remote and consumed an undue amount of time at trial. The prior incidents occurred around 1990-1993, while the charged crimes occurred in 2000 and 2002. There are no specific time limits establishing when a prior offense is so remote as to be inadmissible (People v. Pierce (2002) 104 Cal.App.4th 893, 900; People v. Branch (2001) 91 Cal.App.4th 274, 284 [evidence of 30-year-old sex offense properly admitted]) and we conclude that the similarities described above balance out any remoteness. (Accord, Pierce, at p. 900.) In sum, the trial court did not abuse its discretion in admitting the prior sex act evidence to prove Olea's propensity to commit the charged offenses under sections 352 and 1108.

III.Olea contends the admission of the propensity evidence under section 1108 violated his constitutional rights to equal protection and due process. He acknowledges that the California Supreme Court decided that issue adversely to his position in Falsetta, supra, 21 Cal.4th 903, 913, and we are bound by that decision under Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity).

Olea also contends the admission of the propensity evidence violated his right to equal protection. He raises the issue to preserve it for any further review by the federal courts; accordingly, we need not discuss it here. Although the Falsetta court did not squarely address the equal protection issue, the court cited with approval the holding of People v. Fitch, supra, 55 Cal.App.4th 172, which was that the Legislature reasonably could create an exception to the propensity rule for sex offenses but not for other crimes because of the serious nature of sex crimes, "and because they are usually committed secretly and result in trials that are largely credibility contests." (Falsetta, supra, 21 Cal.4th at p. 918.) We agree with the reasoning in Fitch and reject Olea's equal protection attack on section 1108.

In light of our conclusion the propensity evidence in the present case was admissible under sections 1108 and 352, we need not analyze Olea's argument it was inadmissible under section 1101. (People v. Callahan (1999) 74 Cal.App.4th 356, 372.)

IV.Olea contends the trial court prejudicially instructed with a modified version of CALCRIM No. 1191 regarding uncharged offenses,*fn5 but concedes the California Supreme Court has ruled that the previous instruction, CALJIC No. 2.50.01, did not lower the prosecution's burden of proof in violation of the federal due process clause. (People v. Reliford (2003) 29 Cal.4th 1007, 1014-1016.) Nonetheless, he raises the issue to preserve it for further review. We are bound by the California Supreme Court's ruling in Reliford. (Auto Equity, supra, 57 Cal.2d 450.)

Having addressed the merits of and rejected Olea's evidentiary and constitutional claims regarding the admission of the propensity evidence under section 1108 and his trial attorney's failure to request instruction with CALCRIM No. 1191, we need not address his ineffective assistance of counsel claim.

V.Olea contends the trial court abused its discretion in admitting hearsay statements made by C. B. and her sisters to the district attorney's investigator approximately one month before trial because the statements bolstered C. B.'s testimony, and were not made admissible by section 791. Olea argues C. B.'s motive to lie developed long before cross-examination, and in fact she lied both when the charges against Olea were first brought and at the preliminary hearing.

At trial, when the investigator began testifying about her interview with C. B., Olea unsuccessfully objected on hearsay grounds. The investigator proceeded to testify that C. B. stated that when she was about 11 years old and lived in Long Beach, Olea would touch her breasts and lick her breasts and vagina. Olea threatened to hurt her mother and hit her and her siblings if she did not cooperate with his molestation. The other victims similarly informed the investigator.

The People preliminarily contend the claim is forfeited because although Olea's hearsay objection was overruled, he did not separately object on grounds the admission of testimony violated section 791. We agree with the People. The California Supreme Court stated in People v. Cannady (1972) 8 Cal.3d 379, 388: "No claim is made that [the witness's] prior consistent statement was inadmissible on the ground that the conditions in [] section 791 were not fulfilled, and no objection was made on that ground at the trial. The admissibility of that evidence under section 791 will therefore not be reviewed on appeal." Nonetheless, we treat the contention on the merits to forestall an ineffective assistance of counsel claim.

The People alternatively contend the investigator's testimony was admissible under section 791 as a prior consistent statement because in cross-examining C. B. and her sisters, defense counsel had challenged their veracity and suggested they were motivated by their dislike for Olea.

A prior consistent statement is admissible as an exception to the hearsay rule if it is offered after admission into evidence of an inconsistent statement used to attack the witness's credibility, and the consistent statement was made before the inconsistent statement; or when there is an express or implied charge that the witness's testimony was recently fabricated or influenced by bias or improper motive, and the statement was made before the fabrication, bias, or improper motive. (§§ 791, 1236.)

When impeachment with a prior inconsistent statement implicitly accuses the witness of developing a motive to fabricate his or her testimony at the time of trial, a consistent statement made prior to trial is admissible even if the consistent statement did not precede the inconsistent statement. For example, in People v. Ainsworth (1988) 45 Cal.3d 984, 1013-1015, the witness was impeached with prior inconsistent statements to the police, and the court held contemporaneous consistent statements to the police were admissible because the defense had implicitly charged the witness with fabricating his inculpatory testimony at trial. The Ainsworth court held the consistent statements made contemporaneously with the inconsistent statements were admissible under section 791, subdivision (b) pertaining to consistent statements preceding the development of a motive to fabricate, even though they were not admissible under section 791, subdivision (a) pertaining to consistent statements preceding inconsistent statements. (Ainsworth, at pp. 1013-1015.) Similarly, in People v. Gentry (2002) 270 Cal.App.2d 462, the witness was impeached for failing to provide inculpatory information when first questioned by the authorities, and the court held subsequent consistent statements to the authorities were admissible to rebut the implicit charge that the witness fabricated his inculpatory statements when testifying at trial. (Gentry, at p. 473; accord, People v. Williams (2002) 102 Cal.App.4th 995, 1011-1012.) Under the reasoning of these cases, when a witness is implicitly accused of fabricating his or her testimony at trial, a prior consistent statement made before trial is admissible.

On cross-examination, Olea attacked C. B.'s credibility on grounds that during the preliminary examination she had not denied that Olea touched her. Through cross-examination of C. B.'s sisters, defense counsel suggested that their testimony implicating Olea was biased or fabricated because of their hatred of him. Accordingly, under section 791, subdivision (b), the prior consistent statements that C. B. and her sisters made to the district attorney investigator were admissible to rehabilitate them and to support their credibility.

VI.Olea contends the trial court abused its discretion in admitting testimony regarding a prior domestic violence incident against C. B.'s brother because the testimony had no tendency to prove whether Olea molested C. B. Further, under section 325, its probative value was outweighed by its prejudicial impact because the testimony related to Olea's extreme violence, and it likely inflamed the jurors' passions by portraying him to the jury as an "enraged child batterer." Finally, Olea contends the testimony was unnecessary and cumulative of other evidence showing he had threatened the victims and their brothers.

Background

Before trial, Olea moved to exclude character testimony under section 1101 of an incident in which he held a gun and grabbed one of C.B.'s brothers by the throat. Olea claimed the evidence was overly prejudicial under section 352. The People countered the evidence was relevant because Olea had threatened to hit C.B. and she had seen his violence towards her brothers; therefore, she was afraid of Olea and did not report his sexual molestations. The court ruled that the evidence was relevant regarding the victims' failure to report his sexual molestations and its probative value outweighed any prejudice.

On cross-examination, defense counsel asked C. B. about her previous denials regarding Olea's sexual molestations. C. B. explained, "Well, like I said, I lied about everything that he did to me, you know, and it wasn't for me, it was for my brothers. You know, I didn't want them, you know, -- I didn't like them -- I don't like seeing them suffer. It is hard for me, you know."

On redirect examination the prosecutor asked C. B. if she had spoken more freely about Olea's sexual assaults of her after he was incarcerated, and C. B. answered affirmatively. The prosecutor asked about the incident involving Olea's use of a gun in disciplining her brother. C. B. replied, "What happened is we ran outside, me and my brother because we were going to go running to my sister Wendy's house and that's when [Olea] came out with the gun and he pointed it at us, if we didn't get in he was going to kill us. That's when we got in the house because we got scared. He got from me and pushed me in the closet and told me not to get out." C. B. added that during the incident Olea had choked her brother to the point that he almost passed out.

Applicable Law

"The prejudice which exclusion of evidence under [] section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in [] section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.)

We review the trial court's rulings under section 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless Olea demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal. 4th 1, 9-10.)

Analysis

The challenged testimony was relevant regarding C. B.'s credibility. Section 210 states that "relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Accord, People v. Sisneros (2009) 174 Cal.App.4th 142, 151.) The probative value of the testimony exceeded its prejudicial effect, as it demonstrated the basis for C. B.'s fears of reporting Olea's sexual molestations. She had seen the lengths Olea would go to enforce his dictates.

In one sentence, and without analysis, Olea asserts that admission of the challenged evidence violated his federal rights to due process. As noted, the application of the ordinary rules of evidence does not impermissibly infringe a defendant's due process rights. (Boyette, supra, 29 Cal.4th at pp. 427-428.)

VII.Olea contends the court's instructions with CALCRIM Nos. 220 and 222*fn6 violated his constitutional right to due process because these instructions, read together, limited the jurors to relying only on evidence received at trial and precluded them from taking into account the lack of evidence. He further contends CALCRIM No. 220 on reasonable doubt lowered the prosecutor's burden of proof; specifically, the jury was not told that the prosecutor had to prove each element of the lewd and lascivious conduct beyond a reasonable doubt.

In reviewing challenged jury instructions, we must determine whether it is reasonably probable the jury could have applied the instruction in a way that violates the Constitution. In conducting this inquiry, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.)

Although the beyond a reasonable doubt standard is required for due process, the Constitution does not prohibit trial courts from defining reasonable doubt, as long as the court instructs the jury the defendant's guilt must be proved beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) Further, the Constitution does not require any particular wording to be used in instructing the jury as to the government's burden of proof. (Ibid.)

Contrary to Olea's claim, CALCRIM No. 220 did not tell the jury reasonable doubt must arise solely from the evidence. (People v. Campos ( 2007) 156 Cal.App.4th 1228, 1238.) CALCRIM No. 220 provides that if the evidence does not prove the defendant guilty beyond a reasonable doubt, the jury must find the defendant not guilty. Because the prosecution is required to prove every element of the crime, the jury presumably understands a lack of evidence could lead to reasonable doubt.

Olea's reliance on People v. Simpson (1954) 43 Cal.2d 553 is misplaced. The defendant in Simpson argued the trial court's instruction on reasonable doubt shifted the burden to him to prove his innocence. The court instructed that the term "reasonable doubt" meant "a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence." (Id. at p. 565, fns. and italics omitted.) The California Supreme Court held this language was unnecessary and possibly confusing because "reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced." (Id. at p. 566.)

Here, in contrast, the instruction did not tell the jury reasonable doubt had to arise solely out of the evidence in the case. The court simply instructed the jury to consider all of the evidence presented. Thus use of CALCRIM Nos. 220 and 222 did not violate Olea's due process rights.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.


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