Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. (Super. Ct. No. 04ZF0076)
The opinion of the court was delivered by: Bedsworth, J.
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Appellant was convicted of committing five lewd acts on a child under the age of 14. He was also found to have victimized multiple children and suffered several prior convictions. On appeal, he contends the trial court erred in admitting certain evidence and failing to disclose the identity of a confidential informant. He also contends there is insufficient evidence to support two of the counts, and his sentence of 390 years to life in prison is cruel and unusual. Finding no basis to disturb the judgment, we affirm.
Kevin R. was born in 1992. His father Peter was a long-time friend of appellant, and when Kevin was about 10 years old, the three of them began spending a lot of time together. One day while Kevin and appellant were alone in Kevin's garage, appellant rubbed Kevin's penis over his clothing for about a minute. Appellant also told Kevin he would give him some money if he pulled down his pants and underwear, which Kevin did. Appellant proceeded to drop several quarters on Kevin's penis. He then gave Kevin seven dollars and told him to tell Peter he earned the money for making seven baskets during a basketball game.
On another occasion, Kevin was at his cousin's football game when appellant came up to him, hugged him and "grabbed [his] butt." Kevin tried to pull away, but appellant held on until Kevin told him to stop. Later that day, appellant gave Kevin $20 without saying what it was for. In the wake of these incidents, Kevin told his parents appellant had touched him "in the wrong way" and had "put his hand on his butt" while they were playing sports together. Kevin also told the police appellant had "reached into his pants and touched him skin to skin."
Around the same time (approximately 2002-2004), appellant also touched the private parts of Kevin's eight-year-old neighbor Alex G. At the time of trial, Alex could not remember the details of all the touching incidents, but he did describe two of them. The first one occurred in appellant's car, while he, appellant and Peter were listening to music. At one point, appellant reached over and briefly touched Alex's penis on the outside of his clothing. Alex told appellant to "stop it," and nothing further transpired. Another time, appellant was playing baseball with Alex and other children when Alex went to chase the ball. Appellant followed him, grabbed hold of his buttocks, and did not let go until Alex threatened to call the police. During the time Alex knew appellant, appellant gave him money and a baseball hat.
In addition to the foregoing, the prosecution presented evidence appellant molested two other boys, Fernando F. and Michael D. This evidence was admitted to show appellant's propensity for sexual misconduct and to prove he committed the charged offenses against Kevin and Alex.
Fernando was seven years old in 1997. He testified that during that year, appellant spent a lot of time at his house because he was a friend of his mother. Over a period of several months, appellant touched his penis over his clothing two or three times a week. Sometimes the touching occurred in appellant's car, and other times it occurred in Fernando's house when his mother was not around. Appellant also touched Fernando's penis under his clothing while he was in bed and orally copulated him four or five times. Afterwards, appellant would give him chocolate to make him feel better.
Michael is Fernando's cousin, and like Fernando, he was seven years old in 1997. He testified that when he was over at Fernando's house, appellant showed him pornography on his computer and sucked his penis "more than once." In addition, appellant came into his room on some nights and touched his penis over and under his clothing. Michael said appellant also touched his own penis while he was doing this.
At the prosecution's request, the court took judicial notice that in 2000, appellant pleaded guilty to one count of committing a lewd act on Michael. The court also instructed the jurors that while they could use the evidence of appellant's prior misconduct to prove he was inclined to commit sexual offenses, such evidence was not ...