(Super. Ct. No. 10F06399)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Louis Mayen guilty of one count of lewd and lascivious conduct with a child under the age of 14. (Pen. Code, § 288, subd. (a).) Sentenced to an eight-year state prison term, defendant appeals, contending the trial court abused its discretion in admitting evidence of his prior uncharged sexual offenses under (1) Evidence Code sections 1108 and 352,*fn1 and (2) section 1101, subdivision (b). We conclude the court did not abuse its discretion in admitting defendant's prior uncharged sexual offenses and, even if the court did err in failing to sanitize those offenses, any error was harmless. We shall affirm.
M.I., the victim in this case, was born in February 2004 and was seven years old when he testified at trial.
Between June 1, 2008, and November 1, 2008, M.I. was at defendant's house while defendant's wife (M.I.'s grandmother), Toni M., was away. Only M.I. and defendant were there. While lying on a living room couch watching television, M.I. fell asleep. Sometime later, M.I. awoke with his shorts and underpants down. Defendant stood next to M.I. and then touched M.I.'s penis with his hand. At trial, M.I. described that defendant used "his . . . first finger and used pressure and pushed a couple times." M.I. told defendant to stop, which defendant did. During his testimony, M.I. stated that no one had told him to keep the incident a secret.
Defendant claimed M.I. had falsely accused him, citing two conflicting interviews from M.I.
In the first interview, M.I. told Sacramento Police Officer Michael Rinehart that defendant touched his "private parts" on the outside of his pants. M.I. also relayed to Rinehart that he told defendant to stop, at which point defendant touched M.I. five more times. Additionally, M.I. told the officer that both defendant and M.I.'s grandmother told him to keep the incident a secret.
In the second interview, M.I. told forensic specialist Melanie Edwards that when defendant touched his penis his pants and underwear were down. M.I. also told Edwards defendant stopped because he woke up. Lastly, M.I. stated he went back to sleep after defendant touched him.
B. The Prior Uncharged Offenses
Under section 1108, evidence of defendant's prior uncharged sexual offenses was allowed in at trial. The evidence included offenses defendant committed against four of his children, one being his biological child and the other three his stepchildren. Also admitted into evidence was a statement by defendant admitting to some of the uncharged offenses. That evidence was as follows.
1. T.L. (defendant's biological daughter).
Defendant's daughter, T.L., was born in March 1977. In 1984, when T.L. was seven years old, she lived with her mother and her father, defendant. While the mother worked a graveyard shift, defendant began molesting T.L. The first time this happened was when T.L. was watching television in the living room with defendant. Defendant began touching T.L.'s genital area outside of her clothing. Over time, this touching progressed to touching under the clothes, oral copulation and intercourse. Defendant told T.L. to keep these acts just "between us." The molestations continued for six months and ended once T.L.'s mother stopped working the graveyard shift. Defendant tried to resume molesting T.L. when she was about 10, but T.L. told defendant "no." Defendant never tried to molest T.L. again.
2. D.C. (defendant's stepdaughter).
D.C. is defendant's stepdaughter and the daughter of Toni M. Defendant began molesting D.C. when she was eight or nine years old (1990 or 1991). When no one was home, defendant would molest D.C. in the living room or in the bedroom. The acts of molestation began with touching but gradually progressed to the viewing of pornographic films, masturbation, digital penetration, oral copulation and intercourse. D.C. was molested regularly until she was 13 or 14 years old and was told by defendant that she needed to keep it a secret or he would be in a "lot of trouble." In addition to these acts of ...