Filed 8/22/22 P. v. Youngs CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. ALBERT CHANCELLOR YOUNGS, JR.,
Defendant and Appellant. D079542

(Super. Ct. No. FVI20003103)

APPEAL from a judgment of the Superior Court of San Bernardino County, Tony Raphael, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defend ant and Appellant. Rob Bonta, Attorney General, Daniel Rogers, Acting Assistant Attorney General, Alana Cohen Butler and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Alber t Chancellor Youngs, Jr. of attemp ted forcible oral copulation (Pen

. Code, §§ 664 , 287 , subd. (c)(2)(A) ; count 4 ) and simple battery ( Pen. Code, § 242 ; count 2 ) , a lesser included offense of forcible oral2

copulation

. The jury found him not guilty of misdemeanor sexual battery (Pen. Code, § 243.4(e)(1); count 5 ) , and the court dismissed the two sexual battery by restraint charges (Pen. Code, § 243.4(a), count s 1 & 3) In a bifurcated proceeding, Youngs admitted a serious felony allegation. The

court sentenced him to 13 years in state priso n. Young s c ontend s the trial court prejudicially err ed by (1) de n y i ng his
mistrial motion ; and (2) admitting under Evidence Code 1 sections 1109 and
352 testimony about his prior act s of domestic violence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Y oungs does not challen g e the sufficiency of the evidence to support his
conviction s ; therefore, we merely summarize the facts t o p r ovide context for
his c laims of prejudicial error

. S.F. ’ s Testimony S.F. testified that s he considered Youngs her stepfath er because he had
been married to her mother

. One day i n October 2020, when Youngs temporarily lived with S.F. , she , a male friend , and Youngs were watch ing a movie in her bedroom. She was wearing pajamas and a pair of shorts

. After

t he friend left , You ngs suddenly touched the back of S.F. ’ s neck. She saw
h im masturbating on the bed next to her. Youngs then grabbed her breast and the back of her neck and pulled her toward his penis , which h er lips
touched

. S he pushed off, sat up , and yelled at Youngs to stop because he was her stepfather. Youngs again pulled her neck toward his penis , but she pushed him off. S.F. hid in the bathroom for several minutes . When her friend returned , s he left with him.
S.F. ’ s best friend learned about the incident and reported it to police , who interviewed S.F. three days after the incident.

1 Undesignated r eferences ar e to the Evidence Code.3

Young s ’ s Testimony Youngs testified on direct examination that he was in the bed room with S.F. during the incident, and after S.F. ’ s friend left, he “ reached ” for S.F., and
touche d her “ waist area. ” She protested that he was her stepfather , and ran and got dressed . Youngs denied exposing his penis t o S.F. or forcing her head towards his genitals

. O n cross
- examination , the prosecutor questioned Youngs regarding his
interview with police officers following the incident:

“ [Prosecutor:] At some point in that interview where [two d eput ies] were asking you, ‘ Okay. So [S.F.] said no to w h at, ’ and you responded, ‘ To my advances, ’ right?

“ [Youngs:] Yes, sir.

“ [ Prosecutor :] And anot her question was, ‘ To your [ ‘ ] advances [ ’ ] ? So what is it? So clarify to us, because maybe we can make a different determination if you would clarify with us what are your [ ‘ ] advances [ ’ ] ? Then

your response was, ‘ I

— I just

— I

— I

— like well, one night I had m y arms around her. We were laying there in bed. No, I wasn ’ t r eally ‘ trying to do anything. I left it alone. And then

— and then this night we were laying there, and yeah, homeboy left, and yeah, I tried to get with her, and she said

no. ’ You said that, right?

“ [Youngs:] Yes, sir.

“ [Prosecutor:] And another question during that conversation with the deputies was, ‘ What do you mean? What, [ ‘ ] I tried to get with her [ ’ ] ? So define that. ’ Your response was, ‘ I was laying there in her bed, and

— and, uh,
she was in her

— her night

— her nighty thing, the like. ’ You said that, right?

“ [Youngs:] Yes, sir.4

“ [Prosecutor:] And the next question was, ‘ Pajamas o r something? ’ You responded, ‘ Yeah. Uh, so I

— I just kind of assumed, and

— and I reached for her, but I didn ’ t

— there was never

— I didn ’ t force myself on her. Like she
said no. ’ You said that, right?

“ [Youngs:] Yes, sir. ”
I. Mistrial Motion Youngs contend s the trial court erroneously de ni ed his motion for a mistrial following an unauthorized communica tion between a deputy sheriff , who was a witness a s well as the People ’ s designated investigator , and some jurors. A. Background At the start of trial , the court instructed the jurors to avoid speaking with nonjurors about the trial. On the first da y of trial, t he investigating deputy testified he had interviewed S.F. in the days following the incident, and later detained Youngs for questioning.
F ollowing a recess that first day , defense counsel notified the court about potential juror misconduct in volving the deputy. Outside of the jury ’ s
presence , t he deputy testified that during a recess, several jurors were in the hallway talk ing among themselves about the ir not being paid for their time
at the courthouse

. Unbidden, t he deputy jokingly told the m they were getting paid for jury duty. A juror said they were not, and they all laughed.
T he deputy told the m something like he had just finished a 20

- hour graveyard shift.
The court next asked each juror individually about the conversation
with the d eputy

. Eight jurors said they had heard the deputy talk to a group of jurors , and corroborated the d eputy ’ s account of the topic discussed

. All5

juror s s t a te d the incident would not affect their ability to be fair and impartial , and they agree d to follow the court ’ s instruction not to consider th e interaction with the deputy in reaching a verdict. Defense counsel moved for a mistrial : “ I ’ d ask that every juror who either heard that conversation or was a part of that conversation be excused. And by my m ath, that ’ s about 11 people, which leaves us with five jurors. [ ¶ ] So on that basis, I ’ d ask for a mistrial. I think this is inexcusable conduct by somebody who is trained and knows better and who ’ s trying to improperly curry favor with the jury. So I t hink there ’ s been prejudice here

. I think Mr. Youngs is irreparably prejudiced by [the d eputy ’ s] conduct. ” The prosecutor respond ed that a mistrial was unnecessary since the deputy did not discuss the facts of the case with the jurors , who all said th ey could set that incident aside and be fair and impartial.
The court denied the motion , ruling that that although the deputy ’ s conduct was “ highly inappropriate , ” the misconduct did not prejudice Youngs because the jurors said they could limit their ver dict to the evidence presented in court. The court ordered the deputy exclud ed fr om the remainder of the trial.
The court reminded the jurors to disregard anything they observed
outside of the courtroom. They indicated they could follow that instructio n. The court instructed them to walk away if any party, attorney, or witness approached them to talk. The court further instructed them that the deputy ’ s conduct was “ inappropriate. ” Before closing argument s , the court instructed the jurors with CALCRI M No. 222 that they “ must disregard anything [they] saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses. ” It further instructed the m to disregard what they saw6

or heard during the incident with th e deputy and not consider it for any

reason. B. Applicable Law Penal Code section 1122, subdivision (a)(1) prohibits jurors from conversing “ among themselves, or with anyone else, conduct research, or disseminate information on any subject connected wi th the trial. ” “ [A] ny unauthorized communication between a juror and a nonjuror regarding the matter pending before the jury is misconduct and presumptively prejudicial. ” ( People v. Merriman (2014) 60 Cal.4th 1, 98 .) T he prosecution must rebut the

presu mption by demonstrating “ there is no substantial likelihood that any juror was improperly influenced to the defendant ’ s detriment

. ” ( People v. Clair (1992) 2 Cal.4th 629, 668

. )

“ A mistrial should be granted if the court is apprised of prejudice that it j udges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions. ” (

People v. Haskett (1982) 30 Cal.3d 841, 854.) “ A motion for a mistrial should be granted when ‘ “ ‘ a [defendant ’ s] chances of receiving a fair trial have been irreparably damaged. ’ ” ’ ” ( People v. Collins (2010) 49 Cal.4th 175, 198

– 199.) On appeal, we apply the abuse of discretion standard in reviewing a trial court ’ s denial of a motion for mistrial. ( People v. Davis (2005) 36 Cal.4th 510, 553;.)
C. Analysis We agree with the trial court that the deputy ’ s conduct was “ highly inappropriate

. ” The misconduct i n this case is akin to that in People v.
Stewart (2004) 33 Cal.4th 425, 510, in which a juror asserted in a declaration:

“ 2. During a break in the testimony of witness Jackie Coghlan, I saw Ms.7

Coghlan in the ladies restroom; [¶] 3. While in the restroom, I said to Ms. Coghlan something to the effect of [¶] ‘ I know we ’ re not suppose[d] to have any contact but I just wanted to tell you ’ re [ sic ] a very nice looking (or attractive) lady. ’ [¶] 4. I have no idea what she said after that because I
walked out t he door. I know she said something back but I didn ’ t hear it
because I went out the door. [¶] 5. This brief contact did not in any way affect my ability to be fair and impartial in this case. ” The California Supreme Court described that misconduct as “ a juror ’ s technical violation of
the court ’ s admonition not to discuss the case with nonjurors [that] was

‘ “ trifling ’ misconduct ” ’ that could not have prejudiced the defendant

. ” ( People v. Merriman
, supra, 60 Cal.4th at p. 98 .)
W e conclude t he court did not err by den y i ng the mistrial motion because the prosecution rebutted the presumption of prejudice from juror
misconduct. The court thoroughly investigated the incident by interviewing
the d eputy and each juror separately , and ascertain ed that t he misconduct
involved a brief conversation about a trifling topic unrelated to the merits of the case, between the deputy and some jurors

. The court reminded the jurors of i t s instruction to base their decision solely on the evidence received in court
and a void talking to nonjurors during trial. We presume the jury followed
the instructions. (

People v. Frederickson (2020) 8 Cal.5th 963, 1026

. ) All juror s confirmed that the incident would not affect their ability to be fair and impartial. The court add iti onally remov ed the investigating officer from th at role for the remainder of the trial, thus minimizing any prejudice to Youngs. None of the cases Young s cite s lead us to a contrary conclusion because they either involved prejudicial misconduct, or the pr esumption of prejudice
remained unrebutted : ( In re Hitchings (1993) 6 Cal.4th 97, 123 [ conclud ing a juror ’ s “ intentional concealment on voir dire of material information, as well8

as her discussing the case with [a nonjuror] while a sitting juror, constitu ted jury misconduct and raised a presumption of prejudice that stands unrebutted by the evidence presented at the evidentiary hearing ” ] ; People v.
Pierce (1979) 24 Cal.3d 199, 207 [ concluding that, “ in derogation of his oath and his specific promise on voi r dire not to engage in any such conversations, ” a juror discussed the merits of the case with the witness police o fficer who had investigated the c ase during trial ] ; P e ople v. Holloway (1990) 50 Cal.3d 1098, 1106, 1110

– 1112 [ finding prejudicial misconduc t because during trial a juror had read a newspaper article stating that defendant was on parole from prison after having served time for assaulting a woman with a hammer ] ; People v. Loot (1998) 63 Cal.App.4th 694, 698 [ concluding that a lthough a j uror com mit ted misconduct in discussing the prosecutor ’ s personal life, the resulting presumption of prejudice was rebutted ] .)
II. Prior Offenses Testimony Youngs contends that under sections 1109 and 352 , the trial court erred by admitting (1) an officer ’ s test imony regarding Young s ’ s prior domestic
violence against victim A.A. and (2) S.F. ’ s statement repeating her mother ’ s claim Youngs gave her mother a black eye in 2009

- 2010

. Youngs adds that

“ the prior incidents were entirely dissimilar from the present all eged offenses, because they involved pure, generalized violence, rather than an actual or attempted sexual assault. As a result, the prior incidents had no relevance to and did not show any alleged “ propensity ” by [him] to engage in
the kind of sexually p redatory conduct alleged in this case. Further, evidence regarding the type of generalized violence alleged in the prior cases, in which [ S.F. ’ s mother ] received a black eye, and [Young s ] allegedly attacked [ A

. A. ]
with the leg of a table, was highly infla mmatory and likely to prejudice9

jurors. ” Youngs argues the incident involving S.F. ’ s mother was remote, as it
occurred over a decade earlier

. A. Background
1. Motions in Limine
T he prosecutor mo ved in limine to admi t evidence of Youngs ’ s prior
domes tic violence incidents with a woman named A.A. , with whom he was in

a two

- year relationship , arguing they showed Youngs ’ s propensity for inflicting domestic violence

. As to th at incident, which occurred in June 2019, the People argued
that a p olice off

icer responded to a residence regarding domestic violen ce

. The officer observed A.A. with bruises on her shin, shoulder, and chin, and marks on her nose and forearm. A.A. shook and cried. The officer arrested Youngs for inflicting injury on a cohabitant . Youngs told police he and A.A. had an ongoing argument; h owever, he did not know how she got her bruises. He denied using a wooden table leg as a weapon. Youngs pleaded guilty of attempted false imprisonment. Defense counsel argued the court should exclude evidence of this

“ dissimilar ” incident , pointing out it was not a sex offense, unlike the charged offenses in the instant case

. H e also argued the evidence w as overly prejudicial: “ I think the [incident] was a crime of pure violence, just

sta nd ar d, no sex violence, whereas what Mr. Youngs is charged with is a purely sexual violent case, and the dissimilarities I think are too great under [ section ] 352. ” The court granted the prosecutor ’ s motion to admit evidence of this
incident , finding Young s , in the course of the false imprisonment of A.A ., used the same type of “ control ” behavior as when he push ed S.F. ’ s face down during the alleged sexual assault. The court found th is prior incident was10

not remote ; would no t involve undue consumption of tim e because only two
witnesses w o uld testify ; there was no risk of unfair prejudice because the charged offenses were more serious than Young s ’ s attempted false imprisonment ; and the jury would not be confused because the uncharged
incident involved a differ ent victim. Accordingly, the officer testified regarding Youngs ’ s 2019 domestic violence incident as set forth above.
S.F. ’ s t estimony regarding the other domestic violence incident came to light after she was asked on direct examination why she did not call 911 after the incident with Youngs. She replied she was afraid, embarrassed and hurt. She feared that Youngs would do it again or hurt her if she told anyone. To provide context for that fear, the court allowed her to testify that one day in
2009 or 2010, she saw her mother with a black eye, and h er mother said that following an altercation, Youngs had hit her. During S.F. ’ s trial testimony about her mother ’ s black eye, the court
instruct ed the jurors that her mother ’ s statement merely explain ed S.F. ’ s decision not to contact police : “ [It is not] coming in for t h e truth of the
matters asserted but to explain the subsequent conduct of the witness, S

. F., as she explained earlier. You are only to consider it for that purpose and no
other. ”
The c ourt instructed the jury with CALCRIM No. 303 : “ During the trial, c ertain evidence was admitted for a limited purpose . You may consider that evidence only for that purpose and for no other

. ” It also instructed the jury with CALCRIM No. 852A that if the jury found the prior act with A.A

. occurred then it may, but was not required to, conclude that Youngs was predisposed to commit domestic violence : “ If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not suff i cient by itself to11

prove that the defendant is guilty of [the charged crimes]. The People must still prove each charge beyond a reasonable doubt

. ”
2. The Parties ’ Closing Arguments The prosecutor argued to the jury that the uncharged incident with A.A. proved Youngs was predisposed to commit acts of domestic violence to dominate his partners and force them to do his wishes. He argued S.F. ’ s mother ’ s statement about the black eye ca used S.F. to fear Youngs, and explained why S.F. did not initially report Young ’ s sexual aggression to law enforcement. Defense counsel argued the jury should base its verdict on the evidence of the charged offenses and not merely on his past convictions . He argued Youngs pleaded guilty to his prior crimes and took responsibility for his past mistakes. Defense counsel argued the previous domestic violence offense did not involve sexual violence, and S.F. was not afraid of Youngs , considering
she had let him live with her.
B

. Applicable Law

“ Ordinarily, propensity evidence

— evidence that a defendant committed an uncharged offense

— is inadmissible to prove the defendant ’ s disposition to commit the charged offense. (§ 1101, subd. (a).) Evidence that the defendant committed uncharged crimes or other acts, however, is admissible to prove relevant facts other than disposition, such as motive, intent, and absence of mistake or accident. (

. . . § 1101, subd. (b).) ” ( People v. Kerley (2018) 23 Cal.App.5th 51 3, 531.) S ection 1109 is yet another legislative carveout to this general rule against admitting propensity evidence and provides an exception
in domestic violence cases. It states: “ [I]n a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the defendant ’ s commission of other domestic violence is not made inadmissible12

by [ s]ection 1101 if the evidence is not inadmissible pursuant to [ s]ection
352. ” (§ 1109, subd. (a)(1).) “ As a result, section 1109 ‘ permits the admission
of defendant ’ s other acts of domestic violence for the purpose of showing a propensity to commit such crimes. ’ ” ( Kerley , at p. 531.)

“ [T]he California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence. ” ( People v. Johnson (2000) 77 Cal.App.4th 410, 420.) Section 1109 thus “ ‘ reflects t he legislative judgment
that in domestic violence cases .

. . similar prior offenses are “ uniquely probative ” of guilt in a later accusation. ’ ” ( Kerley , supra , 23 Cal.App.5th at p. 531.) Under section 352, the court must first determine whether the

“ p robative value [of the evidence is ] substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ” (§§ 352 , 1109 .) The trial judge is in the best position to evaluate the evidence. ( People v. Hernandez (2011) 200 Cal.App.4th 953, 966.)

“ We review a challenge to a trial court ’ s decision to admit [this] evidence for abuse of discretion. ” ( People v. Joh nson (2010) 185 Cal.App.4th 520, 531.) “

A trial court ’ s exercise of its discretion under section 352 ‘ “ must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. ” ’ ” ( People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)13

In applying section 352, “ ‘ prejudicial ’ ” is not synonymous with

“ ‘ “ damaging. ” ’ ” (

People v. Karis (1988) 46 Cal.3d 612, 638.) Rather,
evidence is unduly prejudicial under section 352 only if it “ uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues ” ( ibid. ), or if it invites the jury to prejudge “ ‘ a person or cause on the basis of extraneous factors. ’ ” ( People v. Harris (1998) 60 Cal.App.4th 727, 737.) “ Painting a person faithfully is not, of itself, unfair. ” (

Ibid. ; People v. Johnson, supra , 185 Cal.App.4th at p. 534.) C. A nalysis
We conclude the court did not abus e its discretion under section 352 by admitting into evidence both S.F. ’ s testimony regarding her mother ’ s black eye or the officer ’ s testimony regarding the A.A. domestic violence incident. As it was required to do, the court analyzed the testimony for p rejudice

. It did not err in concluding the testimony did not involve undue consumption of
time or prejudice to Youngs, and it was not confusing or misleading to the jury. We also point out the court instructed the jury regarding the fact the testimony a lone would not suffice to convict Youngs , and the scope of the jury ’ s use of it. Accordingly, “ ‘ Any prejudice that the challenged information may have threatened must be deemed to have been prevented by the court ’ s limiting instruction to the jury. We p resume that jurors comprehend and accept the court ’ s directions. ’ ” ( People v. Gutierrez (2018) 28 Cal.App.5th 85, 91.) We are unpersuaded by Young s ’ s attempts to argue the prior crimes and the charged ones were dissimilar, and to distinguish them on the grounds that the former involve “ generalized violence, ” making their admission into evidence prejudicial because they would inflame the jury more14

than the crimes against S.F. As the court ruled, both the prior and the charged crimes demonstrated that You ngs sought to control women physically , as he did in the A.A. incident for wh ich he pleaded guilty to false imprisonment and as he did when he pulled S.F. by the neck and forced her head towards his penis. T he Legislature in permitting the use of propensi ty evidence pointed out, “ Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. ” (See People v. Johnson,

supra, 77 Cal.App.4th at p . 419.) We conclude Young s ’ s actions in the S.F.
incident were arguably more impactful to the jury , as the victim herself testifi ed Youngs us ed his position of age, trust, and authority as a stepfather to expose his genitals and perpetuate acts of sexual aggression against his stepdaughter. To protect herself, she had to escape to the bathroom in her own home, and only emerged when her friend returned. She was so scared she did not call police. We conclude the court did not err by admitting S.F. ’ s state ment about
her mother ’ s black eye for the limited purpose of showing the effect of that
incident on S.F. ’ s decision not to report to the police Young s ’ s crimes against
her. Her testimony was brief, not admitted for its truth, and no details beyond the fac t of the altercation and Youngs ’ s causing the mother ’ s black

eye were admitted. Thus the jury was unlikely to be prejudicially inflamed against Youngs. As to Youngs ’ s claim th at the incident with S.F. ’ s mother , which occurred about a decade before the charged crime, was remote, we point out this evidence was not admitted under section 1109 subdivision (e) , which provides that “ [e]vidence of acts occurring more than 10 years before the15

charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice. ”
I n an y event, although section 1109 establishes a presumption that domestic violence acts committed 10 years before the charged conduct is inadmissible, the statute also “ clea rly anticipates that some remote prior
incidents will be deemed admissible and vests the court s with substantial discretion in setting an ‘ interest of justice ’ standard. ” ( People v. Johnson (2010) 185 Cal.App.4th 520, 539.) “ [T]he ‘ interest of justice ’ e xception is met where the trial court engages in a balancing of factors for and against
admission under section 352 and concludes that the evidence was ‘ more probative than prejudicial. ’ ” ( Johnson, at pp. 539

– 540.) “ To the extent a higher degree of scru tiny is called for, it is the conclusion drawn from the balancing test, not the process itself, that must change under subdivision (e). ” ( Id . at p. 539.) Thus, under the “ interest of justice ” exception, evidence is
admissible when the “ probative value [of the prior acts] weighs more heavily on [the] same scales [as section 352]. ” ( I bi d

. ) Accordingly, even if the subdivision (e) interest of justice exception applies, it is met here

. Youngs argues th is was a close case , pointing out the jury acquitted
him of one count, and the court dismissed two others. We interpret th at result differently. It reflects the jury did not convict Youngs purely based on prejudice resulting from the prior incident with A.A

. ; r ather, it reach ed its
mixed verdict by carefully applying the law, including the jury instructions , to the facts. (

People v. Robertson (2012) 208 Cal.App.4th 965, 99 5 .)16 DISPOSITION
The j udgment is affirmed.

O ’ ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.