The opinion of the court was delivered by: Scotland,j.*
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Luis Gutierrez sexually molested the daughter of his girlfriend, beginning when the daughter was 5 years old and continuing until she was 13 years old. The evidence against him was overwhelming. When confronted by investigating officers, defendant admitted engaging in oral copulation and numerous acts of sexual intercourse with the young girl. At trial, it was undisputed that he engaged in lewd and lascivious acts with the girl; his only defense was the prosecution had failed to prove beyond a reasonable doubt that the acts were committed by "force, fear, menace, duress or retribution," rather than with the girl's consent. The jury found otherwise.
Defendant was convicted of two counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)(1); further section references are to the Penal Code unless otherwise specified), 16 counts of lewd and lascivious acts by force (§ 288, subd. (b)(1)), and two counts of aggravated sexual assault, namely, oral copulation (§ 269, subd. (a)(4)) when the victim was under 14 years old. He was sentenced to state prison for two indeterminate term of 15 years to life, to be served consecutively to each other and consecutively to an aggregate determinate term of 36 years.
On appeal, defendant contends (1) jury instructions given by the trial court regarding other-crimes evidence (CALCRIM No. 1191), and the prosecutor's argument regarding the other-crimes evidence, unconstitutionally reduced the prosecution's burden of proof; (2) the court erred in denying his request to introduce the entire transcript of an incriminating telephone conversation he had with a woman named Lila (the prosecution introduced the portion of the conversation in which defendant incriminated himself); (3) the prosecutor committed misconduct during closing argument to jurors; and (4) the cumulative effect of these errors requires reversal of the judgment.
We shall affirm the judgment.
The prosecution charged defendant with acts that he committed against the victim when she was between eight and 13 years of age. However, over defendant's objection that the evidence was cumulative and unduly prejudicial, the trial court granted the prosecution's in limine motion to introduce testimony by the victim that defendant molested her between the ages of five and eight.
In closing argument, and without any objection by defense counsel, the prosecutor talked to the jury about the uncharged molestations of the victim: "We have evidence of other sexual offenses and what that relates to, because in this particular case our charges start when [the victim] is 8 years old, [defendant] admits to forty times of doing this to [her]. . . . [¶] He admits to starting it at age 8. Well, that is where we decided to start charges. But we know from the testimony of [the victim] it didn't start at 8, it started at 5. And so, do you not hear about what happened starting at age 5? Well, obviously for you to get the full picture of the circumstances of the molestation, of the relationship of the Defendant to [the victim], you have to get the full picture here. [¶] Now that you are getting the full picture, you can do something with that evidence. You can consider it. You can consider that it corroborates what she says. Evidence has been introduced for the purpose of showing the Defendant engaged in sexual offenses on more than one occasion other than what is charged in this case. And what I'm talking about is from age 5 up to age 7, he is not charged with those crimes, but she did describe that conduct. [¶] If you find the Defendant committed a prior sexual offense, you may find he has a disposition to commit further sexual offenses. Wow, that is huge. He has a character -- if you believe what [the victim] tells you about being molested starting at age 5 up until age 7, you can find that he has a character to commit sexual crimes against [the victim]. If you find the Defendant has this disposition, this character, you may, but are not required, to infer that he was likely to commit and did commit the crimes for which he is accused of [sic]. So you can see that that is a very, um [sic], powerful piece of evidence that you can consider and you can see how you would use that evidence. [¶] Of course, there is a burden of proof with respect to presenting that evidence and you have to find beyond a preponderance of the evidence that that occurred. It's not the reasonable doubt standard. If you believe [the victim] by a preponderance of the evidence, which is actually a lower burden, you can use that evidence to show he has a character to commit the crimes and that he likely committed the crimes charged."
Later, without defense objection, the trial court instructed the jury with CALCRIM No. 1191 regarding the evidence of uncharged crimes: "The People presented evidence that the defendant committed the crime of lewd or lascivious act with a child by use of force that was not charged in this case. . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit a lewd or lascivious act with a child by use of force, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of a lewd or lascivious act with a child by use of force. The People must still prove the charge beyond a reasonable doubt."
For reasons that follow, we reject defendant's challenges to the prosecutor's argument and the court's instructions on evidence of uncharged crimes.*fn1
Evidence Code section 1108 "allows evidence of the defendant's uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant's disposition to commit such crimes." (People v. Reliford (2003) 29 Cal.4th 1007, 1009 (hereafter Reliford); see People v. Falsetta (1999) 21 Cal.4th 903, 910-922.) By enacting Evidence Code section 1108, the Legislature "'declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.'" (People v. Falsetta, supra, 21 Cal.4th at p. 912.)
Defendant argues that CALCRIM No. 1191 improperly reduced the prosecution's burden of proof and "over-emphasized a portion of the victim's testimony over that of her remaining testimony." He also contends the prosecutor committed misconduct in arguing incorrect uses of the other-crimes evidence and "exploiting the improper instruction." Both contentions fail.
Defendant's claim that the prosecution unfairly reduced the burden of proof is forfeited by his failure to so object in the trial court. (E.g., People v. Pierce (2002) 104 Cal.App.4th 893, 898.) In any event, it fails on the merits.
Defendant's claim of error is based on his view that the jury instructions on use of prior sex offenses allowed the jury to apply a reduced burden of proof (a preponderance of the evidence, rather than beyond a reasonable doubt) to the charged offenses. However, the California Supreme Court rejected this argument when it upheld the constitutionality of the 1999 version of CALJIC No. 2.50.01. (Reliford, supra, 29 Cal.4th at pp. 1012-1016.) The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to CALCRIM No. 1191 (given here) in its explanation of the law on permissive inferences and the ...