Filed 3/17/ 21 P. v. Nunez CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. DANIEL NUNEZ, Defendant and Appellant. G058009 (Super. Ct. No. 15NF0143)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed.

Cathryn L. Rosciam and Arthur Martin , under appointment by the Court of Appeal, for Defendant and Appellant.2 Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Sen oski, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Daniel Nunez appeals from his conviction on one count of committing a
lewd act on a child under the age of 14 . (Pen

. Code , § 288 subd. (a).) The jury also found true the allegation that he engaged in substantial sexual conduct with his victim. (Pen. Code, § 1203.066, subd. (a)(8).) Nunez contends the judgment must be reversed
because the trial court abused its discretion by (1) admitting evi dence of his pr ior uncharged sexual offenses under Evidence Code section 1108 , and (2) preventing him
from c ross

- examin in g a witness about her income in an effort to impeach her testimony. 1

The trial court has broad discretion to determine the admissib ility of evidence, and w e find no error in either ruling

. We also reject Nunez ’ s suggestion that

we “ reconsider ” whether Evidence Code section 1108, which allows the trial court to
admit evidence of prior uncharged sexual offenses , amounts to a denial of due process. As Nunez acknowledges, our Supreme Court has rejected that contention in People v.
Falsetta (1999) 21 Cal.4th 903, 907 ( Falsetta ) , and we are bound by its decision. 2 It is not within our power to “ reconsider ” a ruling made by our Supreme Court. ( Auto Equity
Sales , Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

1 In his opening brief, Nunez also contended the court erred by admitting evidence of the victim’s prior disclosures of the charged crime to third parties, claiming it was inadmissible hearsay. However, Nunez explicitly withdrew that clai m of error in his reply brief.

2 We recognize Nunez likely raised this issue as a precurs or to seeking review of the issue by our Supreme Court. However, as the Attorney General points out, the Supreme Court has rejected challenges to its Falsetta ruling several times in recent years. (See People v. Molano (2019) 7 Cal.5th 620, 664, citing P eople v. Daveggio and Michaud (2018) 4 Cal.5th 790, 827; People v. Loy (2011) 52 Cal.4th 46, 60

- 61; People v. Lewis (2009) 46 Cal.4th 1255, 1288

- 1289.)3 We consequently affirm the judgment.

FACTS In October 2017, Nunez was charged with a single count of lewd conduct
with a minor under the age of 14

. (Pen. Code, § 288, subd. (a)

. ) I t was further alleged
that he engaged in substantial sexual contact with the minor. (Pen. Code, § 1203.066, subd. (a)(8).) The offense was alleged to have occurred between February 2010 and February 2013.

At the time of the offense , Nunez was living with his long

- term girlfriend,
Gwend e lyn B. The two had been living together since 1986 or 19 87 . Gwen de lyn had
three children from a n earlier relationship

— daughters Shannon B. and J amaica B. , and

son Forrest B. Nunez had helped raise those children, who were adults by the time the
offense occurred

. Gwend e lyn and Nunez also had a child together, Gabriel R.

Gwend e lyn and Nunez lived in a mobile home that was also shared , for a period of several month s, by Forrest. The mobile home was divided into two separate residences; Gwend e lyn and Nunez li v ed in the front, while Forrest lived in the back.

The victim of the charged crime was Forrest ’ s daughter (and Gwend e lyn ’ s granddaughter ), V

. D ., who was an 11

- year

- old fifth grade r at the time

. V.D. lived with her mother, but sometimes visited her father at the mobile home.

During one of those visits, V.D. was in the front residence of the mobile home, sitting on the bed in the room shared by Nunez and Gwend e lyn. She was playing with her flip phone when Nunez came into the room and sat on the bed next to her.

After asking how V.D. was doing, Nunez pulled her c loser to him, touched her thigh , and rubbed her vaginal area outside of her pants

. He u nbutt oned her pants and pulled down both her pants and underwear. Nunez then rubbed the outside of her vagina and put his finger inside. He asked V.D. if she liked it, and she told him she did not and
that it hurt.4 Nunez warned V.D. not to tell anyone; in response, she shook her head apparently to signify she would not . She then ran into her father ’ s residence, hid in the closet, and cried. She did not tell her father what occurred, but she avoided being alone with Nunez after that day.

At some point, V.D. stopped visiting her father at the mobile home ; when he asked her why she did not wan t to stay with him, she told Forest she was not
comfortable around Nunez and Gwend e lyn

.

V.D. did not tell anyone what Nunez had done to her for two or three years

. However, in the period spanning eighth grade to tenth grade, she revealed that Nunez had
molest ed her to four different friends

. All four of those friends testified at the trial.

In September 2014, when V.D. was in ninth grade, she told her mother she had been molested, but she would not initially reveal the identity of the perpetrator. After consistent prodding from her mother over the course of a month, she finally revealed it
was Nunez.
V.D. ’ s mother contacted V.D.’s aunt, Jamaica , who came to talk to V .D

. The next day, Jamaica and V.D. ’ s mother took V.D. to the police station to report the
crime. At the police station, J amaica also reported Nunez had molested her repeatedly
when she was between the ages of about eight and twelve years old.

The police then spoke with Jamaica ’ s sister, Shannon, who repo rted Nunez
also molested her several times when she was between the ag es of eight and eleven.

At trial, t he prosecution filed a motion to admit evidence of Nunez ’ s prior uncharged sexual misconduct against Jamaica and Shannon under Evidence Code
section 1108. The prosecution proffered that Jamaica and Shannon would testify Nunez
had molested each of them repeatedly over a period of years in the 1980 ’ s

— beginning when they were around the ages of eight or nine

— by digitally penetrating their vagina s and touch ing their breasts and buttocks.5 The prosecutor argued that the evidence of both witnesses was relevant to the jury ’ s evaluation of V.D. ’ s credibility in this case , as well as to the issues of Nunez ’ s intent and the absence of mistake or accident. The prosecution also asserted that the
evidence should not be excluded under Evidence Code section 352 because its probative value outweighed its prejudicial effect.

During the in limine hearing , t he prosecutor explained that after Jamaica
and Shannon disclosed the molestations to Gwendelyn , Nunez apologized at a family meeting , and the matter was not reported to law enforcement.

Although Nunez argued the evidence should be excluded because it was too prejudicial and too remote, the court found that the similar ages of V.D. and her aunts at
the ti me they were molested, a s well as the similar familial relationship between Nunez
and each of the victims, had “ significant probative value. ” The court consequently concluded that the probative value of the evidence outweighed the danger o f the jury
misus ing it and ruled it was admissible under Evidence Code section 1108. The trial court further noted that the jury would be appropriately instructed as to how to evaluate
the evidence.
Both Shannon and Jamaica testified at trial about Nunez ’ s molestation history. They also revealed that after they finally disclosed to a cousin the fact Nunez was molesting them, Gwendelyn learned of it and called them together with Nunez to address the issue. Jamaica recalled going into a bedroom where Nunez was present o n his knees. Gwendelyn asked t he two girls if Nunez had done anything to them , and they
said “ yes. ” Nunez was crying and said he was “ sorry. ” Gwendelyn asked the girls to forgive him. Shannon recalled she and her sister participated in a larger fami ly meeting
that included their a unt , two cousins, and Forrest. Shannon testified the outcome of the meeting was that Nunez apologized and said it would not happen again. They did not report the molestation to the police.6 Nunez ’ s defense was grounded on a theory that V.D. had fabricated the allegation against Nunez

— a llegedly at the behest of Jamaica , who wanted Nunez out of the way so she and her five children could move into the mobile home with Gwendelyn.
D uring Jamaica ’s cross

- examination , defense counsel asked her if she worked. When she responded, “ no, ” counsel ask ed her how she supported her five children.

After the court sustained a re levance objection to that question , counsel explained during a sidebar that “ the defense is that these people are making this up. They want Daniel Nunez out of the picture so they can live at his place, and I want to know how she supports her five childre n. I think it ’ s relevant because it would show a motive
to fabricate. ” The court then allowed Nunez ’ s counsel to question Jamaica outside the presence of the jury, to establish how she would have answered.

Jamaica testified that she supported her children through a combination of child support payments and government housing assistance. In response to follow up questions, she explained that “ housing assistance ” meant “ [ t ] he government helps me pay for my rent. ” She gave the ages of her children, who were between 4 and 20, and clarified that she received two child support payments from different people. A fter receiving those answers, defense counsel stated those were the questions he would ask in front of the jury; the court once ag ain sustained the prosecutor ’s objection and ruled the
evidence irrelevant.

The prosecutor asked Jamaica on redirect if she had fabricated her claim of
sexual assault because she was trying to live in a house Nunez owns; Jamaica answered

“ [ n ] o. ”
After both sides had completed their presentation of evidence, the court turned to the issue of jury instructions. The trial court proposed , without objection , that the jury be instructed it could evaluate the evidence of Nune z ’ s prior uncharged sexual
misconduct involving Jamaica and Shannon for its tendency to show intent, absence of mistake or accident, or common plan under Evidence Code section 1101, subdivision (b),7

as well as for its tendency to show Nunez ’ s disposition to c ommit sexual offenses under
Evidence Code section 1108.

The trial court subsequently instructed the jury under a modified version of CALCRIM No. 375, Evidence of Uncharged Offenses, which directed the jurors to disregard the evidence entirely if the y co ncluded the prosecutor failed to establish by a preponderance of the evidence that the prior molestation occurred.

However, the instruction also in formed the jur ors that if they “ decide[d] that the defendant committed the offenses, you may, but are not re quired to, consider that evidence for the limited purpose of deciding whether: [¶] The defendant acted with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or [ V.D .]; or [¶] T he defendant ’ s alleg ed actions were not the result of mistake or accident; or [¶] The defendant had a plan or scheme to commit the offense alleged in this case; or [¶] T he defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclud e that the defendant was likely to commit and did commit the offense charged here. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offense. ”

The instruction e xplicitly directed the jury “ not [to] consider this evidence for any other purpose except for these limited purposes. [¶] If you conclude that the defendant committed the uncharged offenses, 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 the charged crime or the allegation that the defendant had
substantial sexual conduct with [V.D.] who was under the age of 14 at the time. The People must still prove the charge and every allegation beyond a reasonable doubt. ”

T he prosecutor includ ed the instruction ’ s language in her closing argument, and told the jurors that they were not permitted to use the prior act evidence to find the
defendant was “ automatically guilty of sexually assaulting [ V .D.]

. . . . ”8 DISCUSSION
1. Standard of Review In seeking a reversal of his conviction, Nunez relies on a claim that the
court abused its discretion in two evidentiary rulings. We observe at the outset of our analysis it is diffi cult to prevail on that argument. “‘ In determining the admissibility of evidence, the trial court has broad discretion.

. . . A trial court ’ s ruling on admissibility implies whatever finding of fact is prerequisite thereto

. . . . ’ [Citation.] ‘ We review the
trial court ’ s conclusions regarding foundational facts for substantial evidence. [Citation.]
We review the trial court ’ s ultimate ruling for an abuse of discretion [citations], reversing only if “‘ the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. ’”’” ( People v. Jackson (2016) 1 Cal.5th 269, 320

- 321.)
2. Admission of Evidence of Prior Uncharged Sex Offenses
Nunez ’ s first contenti on is that the court abused its discretion by admitting
the evidence of his earlier uncharged sex offenses involving Jamaica and Shannon. He argues the evidence should have been excluded under Evidence Code section 352 because it was substantially more pr ejudicial than probative.

“ In sexual offense cases, Evidence Code section 1108 creates an exception
to Evidence Code section 1101 ’ s prohibition against propensity evidence. Under Evidence Code section 1108, when a criminal defendant is accused of a sexual offense,

‘ evidence of the defendant ’ s commission of another sexual offense or offenses ’ is not
excluded under section 1101 if not inadmissible under Evidence Code section 352. [Citation.] For purposes of Evidence Code section 1108, ‘ sexual offense ’ includes sexual assault, lewd acts on a minor, unlawful intercourse with a minor, rape by coercion, forcible rape, production of child pornography, and exhibiting pornography to a minor. ” ( People v. Nguyen (2010) 184 Cal.App.4th 1096, 1115 , fn. omitted ( Nguyen ) .)9 Evidence Code section 352 provides the court with discretion to ‘ “ exclude evidence if its probative value 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. ” ’ However, “ The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant ’ s trial fundamentally unfair. ” ( Fals etta, supra , 21 Cal.4th at p. 916 .)

In exercising their discretion to admit evidence of prior sexual offenses,

“ trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the l ikelihood 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 avail ability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant ’ s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. ” ( Falsetta,

supra , 21 Cal.4th at p. 917 .)

In Nguyen , this court c haracterized the most significant considerations as

“ (1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant ’ s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. ” ( Nguyen, supra , 184 Cal.App.4th at p. 1117.)10 Keeping those factors in mind , we find n o abuse of discretion in the court ’ s decision to admit the evidence of Nunez ’ s prior uncharged offenses against Jamaica and
Shannon. T he only factor of the five listed in Nguyen that might militate against admission is that the prior acts are fairly remot e in time. But as the Attorney General points out, similar periods between prior acts of sexual misconduct and the current crime
were countenanced in People v. Robinson (2012) 208 Cal.App.4th 965, 992 [ 34 years]; People v. Branch (2001) 91 Cal.App.4th 274 , 284 [30 years]; and People v. Pierce (2002)
104 C al.App.4th 893, 900 [23 years].

Moreover, as pointed out in People v. Pierce, supra , 104 Cal.App.4th at
p. 900 , “‘ s ubstantial similarities between the prior and the charged offenses balance out
the remoteness of the prior offenses. ’ ” A nd a s Nunez concedes, the circumstances of the prior uncharged sexual offenses were strikingly similar to the one alleged in this case

. Hence, rather than attacking the probative value of the evidence, Nunez leans hea vily on the other factors to support his contention that the evidence was substantially more prejudicial than it was probative

.

Nunez also contends the evidence of th ose offenses was stronger and more inflammatory than the evidence supporting the current charge because it involved multiple victims and a pattern of incidents over time. Our analysis of the issue differs

. Both the current crime and the prior offenses were supported by the same type of
evidence : direct victim testimony

. To us, that evidenc e seems stronger in the current

case as it is less attenuated. And because the crimes described by all three victims were so similar, we view them as equally inflammatory. It is unlikely any juror would have
concluded that while a single incident of the type described by V.D. wa s excusable, the
same conduct commit t e d repeatedly

— as described by Jamaica and Shannon

— should be punished.
Nunez also argues the evidence related to prior offenses was likely to have
confus ed and distract ed the jury because he was never punished for th ose offenses and11

the jury might have decided to convict him on the charge against V.D. as a means of holding him accountable for those earlier crimes. However, there is no evidence to support such speculatio n. To the contrary, the court ’ s instruction to the jury gave clear
directions about the limited use it could make of the prior offense evidence, and stated unequivocally that even if the jury concluded that Nunez had committed th os e prior
offenses , that f

inding could not be the sole basis for convicting him on the current charge. We must presume the jury followed th ose instruction s

. ( People v. Holt (1997) 15 Cal.4th 619, 662 .) Finally, Nunez also claims the evidence of the prior offenses requir ed an
und ue consumption of time; again we cannot agree. The evidence consisted almost entirely of direct testimony from Jamaica and Shannon, including cross

- examination of
both witnesses

. There was little third party testimony about the prior offenses : 3 no circumstantial evidence, no experts, and no scientific evidence.

Based on the foregoing, we find no abuse of discretion in the court ’ s determination that the evidence of Nunez ’ s prior sex offenses was not unduly prejudicial.
3. Limitation on Cros s
- Examination of Jamaica Nunez also contends the court abused its discretion by “ exclud[ ing ] this line of questioning ” about Jamaica ’ s purported difficulty “ providing financially for her
children. ” He contends this alleged error unfairly “ restricted [ his ] counsel ’ s ability to
confront and cross

- examine a key prosecution witness on an issue relevant to her bias and credibility. ”

3 During his testimony, Forrest was asked if he knew about the “family secret where Daniel Nunez was a ccused of molesting your sister,” and he replied that he did know abo ut it, but did not believe it. In her testimony, Gwendelyn explained how she became aware of the fact her daughters claimed Nunez had molested them. She also described the family meetin g in which he apologized for it, and revealed that he had “fled to Mexico for one or two months with his mother after the family meeting.” Her direct testimo ny on the issue comprises only nine pages of the reporter’s transcript.12 But the argument misconstrues what actually happen e d , as well as its significance . As the record reflects, Nunez was not stymi ed on an entire “ line of questionin g ” about “ an issue relevant to [Jamaica ’ s] bias and credibili t y. ” Instead, he sought to ask what was essentially a single question: how did Jamaica , who apparently had no paying job , support her children? Nunez ’ s stated goal was to demonstrate that
Jamaica had no means to provide for her children, and was so desperate for housing that
she orchestrated a criminal conspiracy involving a false accusation of sexual abuse against him as a means of removing him from the mobile home he shared with Gwendelyn.
After the prosecutor objected to counsel ’ s question on relevance grounds,
Nunez ’ s counsel was permitted to ask Jamaica his question outs ide the presence of the jury to ascertain what ev idence it would reveal. After Jamaica answered the question,
Nunez ’ s counsel asked some fairly minor follow

- up questions

— establishing that she
relied on two separate child support payments a s well as government housing assistance to support her f

ive child ren

—

before stating those were all the questions he had on the subject. Contrary to Nunez ’ s apparent belief, the evidence Jamaica gave in response to his questions

— i.e., the evidence she presumably would have given before the jury had

t he court not sustai ned the relevance objection

— did nothing to establish her bias. Indeed, in the absence of any information about the amounts of child support and housing assistance Jamaica received, it did nothing to establish she had difficulty providing financially for her children. It was, as the trial court ruled, irrelevant.

Moreover, as Nunez acknowledges, he was still able to make his larger point

— which was that Jamaica desired to live in the mobile home with her children

— through the testimony of Nunez ’ s sister, who claimed that in 2015 Jamaica had broken
into the back residence of the mobile home and began living there with her childr en while the sister was still nominally residing there. His counsel relied on that evidence in13

closing argument to support his assertion that Jamaica had a motive to lie about Nunez to get him out of the residence. Although the jury was apparently not pe rsuaded by th at argument , we fail to see how the point would have been materially strengthened by allowing the jury to hear that Jamaica supported her children through some combination
of unspecified amounts of child support and government housing assistan ce.

DISPOSITION The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.