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									Filed 11/19/09 P. v. Suarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GUSTAVO SUAREZ, Defendant and Appellant.

D052217

(Super. Ct. No. JCF18746)

APPEAL from a judgment of the Superior Court of Imperial County, Donal B. Donnelly, Judge. Reversed. Gustavo Suarez, a seasonal truck driver who assisted his wife, Ofelia Suarez (Ofelia), in operating a daycare facility called the Rainbow Family Day Care out of their El Centro, Imperial County home from 1993 until 2006, appeals his seven child molestation convictions, involving four young girls who attended the daycare between September 1, 2004 and August 29, 2006. Suarez had proceeded to jury trial on a second amended information, which charged him with 15 counts of committing a lewd act upon

five different children under the age of 14 years (Pen. Code,1 § 288, subd. (a)). As to each count, the information also alleged a primary care enhancement, i.e., that each child was a minor entrusted to Suarez's care by the minor's parent within the meaning of section 674, subdivision (a), and a multiple victim enhancement (§ 1203.066, subd. (a)(7)). The jury returned verdicts finding Suarez guilty of count 1, involving victim Jane Doe "S" (S.); counts 4 and 6, involving victim Jane Doe "K" (Kaylee); count 11, involving victim Jane Doe "M" (Megan); and counts 13, 14 and 15, involving victim Jane Doe "C" (C.). The jury also found the primary care and multiple victim enhancements true as to each of those counts. The jury acquitted Suarez of count 7, involving Kaylee, and count 12, involving Megan. The jury deadlocked on six counts: counts 2 and 3 involving S., count 5 involving Kaylee, and counts 8, 9 and 10 involving victim Jane Doe "A" (Alissa). The trial court declared a mistrial on these charges and subsequently granted the prosecution's motion to dismiss them. Before sentencing, Suarez retained new counsel and the court granted his request to continue the sentencing hearing several months. After denying a second motion by Suarez for a continuance, the court sentenced Suarez to a total prison term of 22 years. On appeal, Suarez raises numerous claims of ineffective assistance of counsel as well as contending the trial court committed prejudicial instructional and evidentiary errors. Specifically, Suarez contends his first trial counsel rendered ineffective assistance

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All further statutory references are to the Penal Code unless otherwise indicated. 2

by: (1) failing to object to the admission of expert testimony "vouching for the complaining witnesses and implying they were telling the truth during [their respective] forensic examination[s]"; (2) failing to object to "substantial prejudicial portions" of his taped interrogation with the investigating detective; (3) failing to object to the introduction under Evidence Code section 1360 of "the entire videotaped interviews of [four of the] complaining witnesses"; (4) failing to object to the admission of "inadmissible officer opinion and speculation" elicited from two detectives regarding the validity of the victims' and another minor witness's pretrial interviews, concerning an adult witness's veracity and about the prior crimes evidence; (5) failing to object to "prejudicial prosecutorial misconduct" concerning what one young victim told the prosecutor pretrial; and (6) failing "to request an instruction that evidence of [his] good character is sufficient by itself to raise a reasonable doubt." Suarez also claims that his second trial counsel provided ineffective assistance at sentencing by "failing to investigate grounds for a new trial motion, failing to obtain and review the probation report prior to sentencing, and failing to argue for a lesser sentence." Additionally, Suarez specifically contends the trial court prejudicially erred by failing to sua sponte instruct with CALCRIM No. 1193 on the proper use of evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS) and prejudicially abused its discretion in admitting two adult pornographic magazines found during a search of Suarez's residence and in admitting evidence of a 1997 uncharged sexual offense under Evidence Code section 1108 over his Evidence Code 352 objection. Along with this latter assertion, Suarez further claims Evidence Code section 1108 violates due process 3

by permitting disposition evidence to convict. Finally, Suarez claims the accumulation of the numerous trial errors denied him the right to due process, effective assistance of counsel and a fair trial which warrants reversal of his convictions. Based on the particular facts of this case, we determine the trial court abused its discretion in admitting evidence of the uncharged sexual offense under Evidence Code section 1108 over Suarez's Evidence Code section 352 objection. Such ruling set in motion a trial within a trial of two cases, which were used in circular fashion to bolster each other. Although a defendant is not entitled to a perfect trial (People v. Mincey (1992) 2 Cal.4th 408, 454), in light of the record and the importance of credibility in this case, we believe the court's erroneous ruling denied Suarez the fair trial to which he is entitled. (Ibid.) Accordingly, we reverse the judgment. FACTUAL AND PROCEDURAL BACKGROUND Suarez does not challenge the sufficiency of the evidence to support his various convictions, which basically showed that between September 1, 2004 and August 29, 2006, he inappropriately touched four of the young female children at the Rainbow Family Day Care he assisted his wife operate out of their home. Although Suarez worked long hours as a truck driver during the months of October to July, he helped his wife, who ran the day-to-day operations of the daycare facility, when he was home the other months. During this time, Suarez played with the young children at the daycare facility and often was the only adult present with the children. Among the children attending the daycare facility during the relevant period were 14-year-old Raymond, 13-year-old C.,

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seven-year-old Megan, and three sisters, Alissa (nine years old), Kaylee (six years old), and S. (five years old). On August 29, 2006, after the sisters were picked up from the daycare facility, S. told their mother that she did not like it when Suarez touched her "private part" and that Suarez also touched her two sisters. When their mother asked Kaylee about the matter, Kaylee said that Suarez touches a lot of the girls at the daycare facility, but touches her and her sisters every day. When their mother asked Alissa about the allegations, Alissa, who was in her room ill, would not respond, merely hiding her face in her pillow and saying she did not want to talk. After the sisters' mother talked with a law enforcement friend, she contacted the El Centro Police Department the next day about the accusations against Suarez and Detective Crispin Beltran came to see her that night. Beltran advised her not to talk to her children anymore about what had happened and made arrangements for the young sisters to be interviewed separately by a social worker the next day, while he observed each interview behind a one-way glass wall. During Alissa's interview, she told the social worker that Suarez had rubbed her both on her front side and on her behind about 12 times on top of her clothes. She felt weird when he touched her and would push his hand away and run when he tried to touch her under her clothes. Alissa said she saw Suarez also touch her sisters and C., but that he would stop when he saw her watching. In Kaylee's interview, she initially told the social worker that there was no touching at the daycare facility, but that she had seen "gross" pictures of naked people in 5

a book in the garage that some boys showed her there and that Suarez and his wife knew about the pictures and also looked at them. Kaylee said she was left alone with Suarez a lot. When asked again whether there was any kissing or touching, Kaylee responded that there had been some kisses to her body and on her cheeks and that Suarez touches her on the legs. She also said that he touches all the girls at the daycare facility, but would stop when his wife came near. Kaylee said there was touching in the garage and on the couch, and that Suarez always "says don't tell anybody." Suarez had touched her one time in the garage and had touched her buttocks with his penis while pushing her on the couch in the living room, which caused her pain. He had promised her candy but never gave her any. At S.'s interview, she told the social worker that Suarez touched her, her sisters, and C. on their private parts under their clothes, but told her not to tell his wife. S. said Suarez had touched her by rubbing his hands on her 10 times, including in the living room, in the backyard, and in the garage while telling her she was his "little girl, I like you." S. thought this was "disgusting" because people do not usually touch other people's "bottoms." Suarez had also shown her a picture of a nude boy and girl holding hands in the newspaper or a book about "20 times," and had put her in a "little kid cage" when she was in a "time out." S. said that Suarez kisses her and her sisters and C. under their clothes. At some point the sisters' mother called C.'s mother and told her that Suarez had been touching her girls and that they claimed he was also touching C. Although C. told her mother that she had not been touched, and neither her mother or her brother, who also

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attended the daycare facility, had ever seen Suarez do anything inappropriate with the children there, Beltran arranged for C. to also be interviewed by a social worker. In the meantime, Megan's mother heard about the sisters' allegations against Suarez from their father and contacted Beltran to have Megan interviewed by a social worker even though neither she or her younger sister, who also attended the daycare facility, had mentioned anything about being touched inappropriately. During Megan's interview, she told the social worker that Suarez touched her private parts outside her clothes many times when he was sure his wife was not around. Megan said she was in the garage the last time Suarez touched her by picking her up and moving his hands on her private parts so hard that it hurt. He did this until his wife came in and yelled at him. Megan said she told Suarez's wife about the touching when she was five years old and her mother when she was six. She told the interviewer that she also spied on Suarez, along with the sisters, and while they did so they saw him touching the babies, her sister, the boys and all the girls at the daycare facility the same way he touched her. About a week after the first forensic interviews had been conducted, Beltran executed a search warrant on the daycare facility in Suarez's home during which two pornographic magazines depicting "hard core" sex acts were found under Suarez's mattress in the home's upstairs master bedroom. Beltran seized the magazines because several of the young girls had mentioned during their interviews that they had seen pictures of naked people while at daycare. As the search continued, Suarez returned home and Beltran advised him that even though he was not under arrest, he would like to 7

speak with him and that any interview would be strictly voluntary. Suarez agreed to talk with Beltran and drove himself to the police station where he was interviewed. Before Beltran conducted the interview in Spanish, he reiterated that Suarez was not under arrest, that the closed doors of the interview room would remain unlocked during the interview, and that Suarez was free to leave anytime. In the interview, Suarez, who had never been arrested or in jail, denied ever touching any of the girls at the daycare facility in an inappropriate way. Even after Beltran told him there was medical evidence that showed someone had touched at least one of the girls, Suarez was steadfast in his denial of the accusations. Basically, Suarez could not understand why the girls were saying he had touched them inappropriately. He understood the seriousness of the accusations because one girl had falsely accused him 10 years earlier before leaving the daycare facility. However, that investigation was "inconclusive" and the matter was never charged because he had done nothing to the little girl who grabbed her own private parts, like masturbating, which was a problem she had before coming to the daycare facility. When Beltran then asked again whether Suarez could explain why four of the girls currently attending the daycare facility would say he was touching them on their "private" parts and drawing pictures of children with no clothes on and pointing to their vaginas, Suarez replied that a month earlier Alissa had complained that he had grabbed her "buttocks" when she had thrown herself on him while he was playing with the children and that since that time he had been very careful about any contact with her or the other children. Suarez denied that that contact or any other touching of the children at the 8

daycare facility while playing games with them or watching television with them was done with any intent or malice. He said he would feel bad if he had done what he was being accused of and that he did not feel bad about anything, or the times he had hugged the children when they greeted him or picked them up all together. He specifically denied any accusations that he had rubbed C. or S. on their vaginas or had pushed up S's pants or lifted her dress. Suarez believed it was very easy to put words in the mouths of children and that children did not always tell the truth, suggesting the girls were most likely influenced by their parents in making the accusations. Although Beltran said he was not saying Suarez was guilty and that he could close a case without referring it for prosecution if he believed the children were telling him "things that simply do not match," he outlined for Suarez the evidence in the girls' interviews against him and what would happen when the matter went to court before telling him that he honestly thought there was sufficient evidence at that point to send the matter to the District Attorney's office for prosecution. In the face of repeated questioning as to why the girls would falsely accuse him, Suarez continued to maintain that he did nothing and did not know why the girls were saying this. Suarez also denied there were any books of nude children in the garage of the daycare facility. However, he admitted that the two magazines found under his mattress belonged to him, explaining that because he had some sexual problems in reaching an erection and very little sexual appetite, he sometimes masturbated to take the temptation out of the way.

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At some point in the investigation, S., Kaylee and Alissa were given medical examinations but no evidence of molestation was found. Beltran also did a customary check in the El Centro Police Department computer system and discovered an earlier report for lewd acts naming Suarez as a suspect. He subsequently located the alleged victim Sarah and her mother, spoke with Sarah's mother and father, and had Sarah interviewed by a social worker. Beltran further conducted a forensic interview of Raymond, a 14-year-old boy who attended the daycare facility, after his mother contacted the detective about him having some information regarding the touchings there. Suarez was eventually arrested and charged with molesting C., Megan and the three sisters. At trial, in addition to presenting the above evidence about the reports of touching by Suarez and the investigation by Beltran, Raymond and his mother and each of the alleged child victims testified in the prosecution case. Specifically, Raymond's mother testified that Raymond and his younger sister had attended the Rainbow Family Day Care for several years and that Suarez and his wife had been like family. When Raymond initially told her he was upset about Suarez rubbing the legs of girls at the daycare about nine months before the instant charges surfaced, she did not believe him because she socialized with and trusted Suarez and his family and Raymond had been having issues at school and had lied to her before. When Raymond recently brought the issue up again and described what he was seeing at the daycare, even though she knew that Suarez had been investigated for a possible molestation in 1997, because of her close ties with Suarez and his family, she did not believe Raymond at first.

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She thought Raymond was just trying to get out of daycare because he did not like being there at his age. After Raymond took his mother's cell phone without permission to take a photo of what he was seeing Suarez do to the girls at the daycare, she finally believed him and pulled him and her young daughter out of the daycare facility. She did not tell Suarez's wife the real reason she was removing her children from the daycare facility because they had been friends so long. Raymond's mother explained that she did not say anything at that time since they would have thought she was lying because it had been brought up 10 years ago, she did not see it and her son who did was a known liar. When Suarez's wife told her that Suarez was being investigated again like before, Raymond's mother then had Raymond talk with Beltran. Raymond's mother testified she had been in denial and regretted not believing him earlier. She had expressed loyalty and support for Suarez when it happened before by writing a letter in his defense about the girl having personal issues and making the accusation up, but now learning about the new accusations and believing her son, she believed that Sarah was molested 10 years ago. On cross-examination, Raymond's mother conceded that she had never seen Suarez act inappropriately with any child although he was present at the daycare whenever he was not working and played with and helped his wife watch over the children. Raymond testified at trial that beginning in September of 2004, he saw Suarez touch S., Kaylee, Alissa and Megan numerous times with his hands on their legs and their private parts when they were wearing skirts or dresses. Suarez would touch the girls 11

almost every day whenever his wife was not around, being on the lookout for her as he touched the girls by positioning himself so he could see her coming. Raymond saw Suarez touch S. the most, between 20 and 25 times, including once lifting her skirt or dress while she was reading at the kitchen table. Another time, Suarez also rubbed S.'s vagina under her underwear as she was standing on her head and while whispering her name. Suarez touched Kaylee about 20 times, including rubbing her vagina while she was in a play castle in the backyard and touching her on her buttocks while giving her a piggyback ride. Suarez touched Alissa about 10 to 15 times, including rubbing her on the inner thigh several times as she sat at the kitchen table and while she was on the couch. Suarez touched Megan one time on her vagina while she was sitting on Suarez's lap or while playing pool. Raymond confirmed that his mother did not initially believe him when he told her about what he had seen because his family was very close to Suarez's family. Although he had asked for his mother's cell phone, he did not take it to the daycare facility, taking a Gameboy instead. Raymond felt relieved that his mother finally believed him and he was able to talk to Beltran about Suarez's conduct. Alissa testified that while she attended Rainbow Family Day Care, she was sometimes alone with Suarez, who would give her candy and had touched her private parts with his hand more than five times. Although she initially said she did not see Suarez touch her sisters, she thought she maybe saw him touch S. once and remembered she had previously stated that she had seen him touch Kaylee, S. and C. on their private

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parts numerous times. She did not remember being touched in the kitchen, only in the play room. Kaylee testified that Suarez never touched her and that she never saw him touch "anybody else." She also denied she had told her mother that he had touched her or her sisters. Although she agreed the District Attorney had her watch her videotaped interview and afterwards she had said that what she said during the interview was true and she had sometimes been alone with Suarez, Kaylee testified, she did not know if he had touched her and was not sure it happened. S. testified at trial that although she remembered telling her mother that Suarez had touched her private parts, he "didn't really touch mine." She said Suarez had touched Alissa more than five times and also C. and Kaylee, but not Megan. S. then said that only Alissa and C. were touched, not her or Kaylee. S. specifically denied that Suarez had touched her while she did a handstand, but agreed that he had played games with the children while his wife was at the store. Megan testified that when she was at the Rainbow Family Day Care, Suarez had touched her on her private parts with his arm and hands on top of her underwear more than 10 different times while his wife was in a another room. When he did the touching, he would talk to her in Spanish and always be "looking around" for his wife because she did not let him touch the girls. When his wife caught him picking her up and touching her one time, she yelled at him to stop and made him leave the room. Megan could not remember showing the prosecutor before the preliminary hearing how Suarez had hugged

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and touched her by using the prosecutor's body to do so. Megan said she had told the sisters about the touchings. C., who had attended the daycare facility in Suarez's home since she was an infant testified at trial that she still loved Suarez and his wife like family. Almost every other day after she turned 11 years old, when she was wearing a skirt or dress at the daycare facility, Suarez touched her on her thigh close to her underwear line, rubbing back and forth until she would push his hand away. Several times, Suarez would also touch her on top of her clothes under her bra line in the same manner. The touching occurred in the living room, the garage and outside, sometimes with other children playing nearby. C. never saw Suarez touch anyone else or tell anyone about Suarez touching her. Megan's and the sisters' unredacted videotaped forensic interviews were entered into evidence and played for the jury. The sisters' mother testified at trial consistent with the above evidence regarding S.'s report of the touching to her and clarified that Alissa had said that nothing had happened to her when asked about S.'s complaint about Suarez's touching. She added that the girls had all testified in court one time before trial on this matter and had also reviewed their videotaped interviews at the District Attorney's office with Beltran and the prosecutor before testifying. In addition to testifying about the investigation, including setting up and viewing the forensic interviews of the various alleged victims, the medical examinations of the sisters, serving the search warrant on the daycare facility, interviewing Suarez, locating an earlier alleged victim Sarah and her mother, and conducting Raymond's forensic interview, Beltran specifically pointed out that S. had told the social worker that her 14

sisters and C. had been touched, Kaylee had said C. had been touched and that all three sisters had said they had seen each other being touched. Beltran also stressed that during Kaylee's interview she described an act where Suarez held her against a couch and had rubbed his penis against her buttocks causing her pain because of intense grinding. Beltran was not bothered by Kaylee saying "us" instead of "me" when discussing the incident because he believed she was talking about herself. Beltran also remembered the prosecutor meeting with him and all the children before the preliminary hearing in this case when they reviewed all the interview tapes and the children were asked if what they had said in the interviews was the truth and they indicated it was. Megan, however, added that she had forgotten to tell the interviewer about an incident where Suarez had hugged her against him and touched her vaginal area. Megan used the prosecutor to show her what Suarez did to her, but did not want Beltran to watch the demonstration because she seemed embarrassed. Beltran did not make a report of this demonstration because all the facts about it came out at the preliminary hearing. Beltran further discussed the circumstances concerning interviewing Suarez and the redacted videotape of that interview was played for the jury. Also in the prosecution case, Catherine McClennan, a supervisor and forensic interviewer with the Palomar Pomerado Health Systems child abuse program, testified as an expert about the proper techniques used for such interviews, about child sexual abuse in general and about the specific forensic interviews conducted in this case. McLennan, who trains others how to conduct forensic interviews and has testified as an expert 15

regarding child sexual abuse matters 15 times, explained what a forensic interview is and how it should be conducted. She noted that although certain guidelines and protocols should be followed when conducting such an interview, the fact that some are overlooked or skipped does not necessarily taint the entire interview. She also commented that it was not the job of the interviewer to determine whether a crime did or did not occur, but only to collect information. McLennan then testified in general about certain aspects of child sexual abuse, stating it was common for children who have been molested, especially where they know the molester, not to immediately disclose the molestation and to still feel affection for the person who molested them. Once the child discloses such conduct, it was common for the child to do so in a limited fashion and not to disclose everything right away. Although McLennan would expect that what a child said during a forensic interview would be more reliable than what the child said in a courtroom at trial, she knew of no research to support such difference. She merely opined this difference from her perception that a courtroom can be very intimidating for a child who is facing the person the child has accused and a forensic interview is conducted in a safer, more comfortable environment where the child can be asked open-ended questions. In addition, McLennan noted that a child might say something different in court from what the child said in an interview because the child might not understand the questions asked in court by an examiner who uses language the child does not understand. McLennan explained that she had been asked to review the videotapes of the forensic interviews conducted with the girls involved in the current case and to give 16

feedback on how the interviews were performed and about the children's developmental level and involvement. With respect to the protocols, McLennan stated there were areas of the interviews that she would have done differently and gave a series of examples of sections where the interviewers did not follow proper protocol. She believed that a more experienced interviewer would have asked more questions to follow up on what some of the girls said in order to develop or obtain additional information or to clarify some of the statements made. Further, in her opinion, one of the interviewers should not have asked the child to "help" her, which is a form of social coercion of the child, and another interviewer should have clarified what a child meant by the reference "us." Although McLennan was critical of how the interviews were conducted in general, she reiterated that just because strict protocol was not followed did not necessarily mean that the information obtained during the interview was inaccurate or should be dismissed. As to the children's developmental levels and involvement, McLennan testified that the cognitive or developmental abilities of children as young as those in this case made it difficult for them to sometimes identify duration, frequency and distance between events. Such young children should, however, be able to accurately tell what happened, who did it and where they were when the event happened. McLennan noted that both S. and Kaylee showed that they were able to keep track of the conversation in their interviews and showed a willingness to provide information, correcting the interviewer when she was wrong, rather than just agreeing with her. It was McLennan's impression that the children interviewed were within a normal functional range and their language appropriate in answering the questions. Nonetheless, she opined that because the 17

children were cognitively capable of providing more specific and clear information they might have done so with a more experienced interviewer. Sarah and her mother next testified in the prosecution case. Sarah's mother testified that Suarez and his wife had taken care of Sarah at their daycare facility from the time she was an infant until she was four years old. Shortly before taking Sarah out of the daycare there, she had rented a room from Suarez and his wife for several months. One night in January 1997, when she picked up Sarah from the daycare before going to their room upstairs, Suarez was alone with Sarah and drinking a beer while his wife was upstairs resting. Because Sarah's mother did not trust men, she had a feeling that something was wrong because Sarah had recently been touching herself on her vagina. When she asked Sarah if she had touched herself that day, Sarah told her "no," but that Suarez had touched her private part on top of her underwear. Sarah's mother removed Sarah from the daycare facility the next day and reported the incident to the police a week to 10 days later. Before Sarah attended the forensic interview that Beltran arranged for her in this case, Sarah's mother told her she was being interviewed because she had been touched when she was four years old, that she would be questioned about the incident and that there were other children who were currently making accusations that Suarez had also touched them inappropriately. Sarah, who was 15 years old at the time of trial, testified that 10 or more years ago she was molested by the daycare woman's husband one night when the woman was not there. Sarah remembered wearing a lot of dresses when she was little and that one night 18

she was lying on the floor on her back in the living room of the childcare facility with Suarez kneeling in front of her, with his hand either under or over her underwear, "kind of like pushing" his hand. Although Sarah initially testified she did not "remember anything about that night," she later said she remembered the incident well and feels mad about what happened to her. On cross-examination, Sarah said she had not thought much about the incident until her mother had brought up the subject. She told the social worker at her interview that trying to remember the incident was like "watch[ing]" herself "on TV." She conceded she told the interviewer she had heard that Suarez had also done this to six other little children and probably had said that she hoped the little children "end up all right." Sarah acknowledged that she used to touch herself when she was little and that her mother would tell her to stop doing it. Beltran was recalled to the stand to testify about Sarah's October 2006 interview, noting that she had circled a figure's vaginal area and inner thigh as the place where Suarez had touched her when she was four years old. The Defense Case Suarez did not testify in his defense at trial. Rather, he called six witnesses, both family members and friends, who testified to the fact each had never seen him act inappropriately around children. He additionally presented the testimony of an investigator who had reviewed the 1997 incident involving Sarah and the testimony of an expert regarding the forensic interviews conducted in this case as well as calling Beltran as a defense witness. 19

Specifically, a family friend, who had been a daycare attendee and former employee, testified that although Suarez would take care of the children and touch them physically, sometimes even when his wife was not present, she never saw him touch a child inappropriately. Another former employee who had worked at the daycare facility for five years also testified that, although she saw Suarez play with the children, hug them and pick them up, she never saw him touch any child inappropriately. This former employee, however, did not work full time when Suarez was home and did not work at all during the previous summer. An Avon sales representative who socialized with Suarez and his wife and stopped by the daycare facility about every three months, testified that she never saw Suarez playing with the children. Suarez's 13-year-old grandson, Gustavo, who attended the daycare facility every summer, testified that although Suarez would help take care of the children and play games with them there, and occasionally be with them when his grandmother was not present, he never saw Suarez touch any child inappropriately. Although Gustavo mostly played at the daycare facility with Raymond and C., who were his age, Raymond had never told him he saw any inappropriate touching. Nor had Gustavo ever seen any pictures of naked people at his grandparents house or daycare facility. Suarez's daughter testified that although her father would play with the children, hug them goodbye, pick them up, and give them candy when they were good, she never saw him touch any child inappropriately. Nor had he ever acted inappropriately with her as she was growing up. Suarez's daughter lived with her parents from 1993 to 1996 and also stayed at their house most days from April 2006 until August 2006 because she had 20

had twins. She never saw any adult books or magazines depicting nude people at the house or daycare facility. She remembered that Suarez did not work during the previous summer so he was often at the daycare facility when she was there and that occasionally he would take the children to the store without her mother. Suarez's daughter also remembered that when Sarah attended the daycare facility, she would touch her own "private spots" a lot. Suarez's wife, Ofelia, testified that she, not Suarez, was the daycare provider in charge of watching the children, and at any given time she would have 12 to 14 children at the daycare facility. During the summers of 2005 and 2006, Suarez was home and played with the children but was never alone with any one child, although he was sometimes the only adult with a group of children. However, he would often go alone to pick up a child from school. Ofelia never saw Suarez touch a child inappropriately. Nor did she have any books or magazines with pictures of naked people at the daycare facility or home. None of the children, including Raymond, C. or Kaylee, who were very close to her, ever told Ofelia that Suarez did anything inappropriate. With regard to Sarah, Suarez's wife testified that when Sarah masturbated, she would try to focus the girl's attention on something else. When Sarah's mother confronted Suarez with the accusation that he had touched Sarah, Suarez had been surprised and told her to have Sarah make the accusation in front of him and to call the police. The police did not come to their house until two months later. Ofelia informed all the parents at her daycare of the allegation and all were supportive. Ofelia never lost her license for the daycare facility. Because of that earlier investigation, however, Ofelia 21

had instituted a new rule that no children were allowed to be between a boy's or man's legs. Investigator Michael Goodspeed, who had conducted the investigation of the 1997 incident, testified he was present when Sarah was interviewed by Child Protective Services (CPS) and that during the interview, Sarah said Suarez had touched her on the outside and inside of her underwear "in an area she indicated [on a doll] as her pubic area" while she was laying on the floor on her stomach watching television. When Goodspeed interviewed Suarez, he denied the allegation, stating that he had actually grabbed Sarah's arms and removed them from her underwear when she had begun masturbating. Sarah's parents had told Goodspeed's colleague they were aware that Sarah was masturbating before the alleged incident. After discussing the matter with his colleague, Goodspeed determined there was not enough evidence to go forward with the investigation. On cross-examination, Goodspeed acknowledged that there had been no physical evidence of inappropriate touching in that earlier case or any conflicting statements by Suarez, which would have given him grounds for further investigation. Although there had been no determination that Sarah was not telling the truth, there had been no evidence to dispute Suarez's explanation of the incident. Goodspeed explained that it is common for cases that involve a statement of a child and a statement of an adult to not be pursued because there is no means to obtain additional evidence. Goodspeed conceded that the situation in the earlier case might have been different if he had had additional information to consider in determining the sufficiency of the evidence to go forward with 22

the case. For example, Goodspeed would have considered the inconsistency that Suarez "when interviewed at a later time said, when he was told that Sarah has a problem masturbating, '[that w]hen she stayed at the house there was never anything, nothing of that type. Nothing. It was normal. It was completely normal.'" Goodspeed would "also have considered, if it existed, evidence that five other children said [Suarez] had touched them in a similar way." Goodspeed would have additionally considered "that a 13-yearold saw some of the events" and "that none of the children involved had any known motive to lie or make up these stories." Beltran was then called as a defense witness regarding the sufficiency of the current investigation and his interview with Suarez. Beltran acknowledged there was no physical evidence of molestation in this case even though he had told Suarez during his interview that there was some. Beltran also conceded that he had not investigated the credibility of the alleged child victims and that he had not talked with or interviewed Ofelia, or any of the other adults involved with the daycare facility, regarding the allegations. Beltran said it had been after Suarez's interview that he discovered Sarah's existence regarding the uncharged 10-year-old case. Finally, Dr. Michael Kania, a criminal forensic psychologist with specialized training in interviewing techniques and clinical evaluations of both children and adults, testified as an expert for the defense. Kania had reviewed the videotapes of the forensic interviews done in the present case as well as McLennan's notes regarding those interviews. Kania generally criticized the interviews because the interviewers had not attempted to determine the source of the girls' information, had asked too many confusing 23

and leading questions, had implied that any touching was bad, had not followed up on the information received from the girls, and had not attempted to determine the credibility of the girls. Kania specifically took issue with Kaylee's interview because the interviewer had asked her to "help" her and did not follow up on who Kaylee was referring to when she said "us." Kania also criticized S.'s interview because the interviewer did not ask any clarifying questions when S. followed the interviewer's lead and called Suarez by the wrong name. Kania additionally thought that during Megan's interview the interviewer should have followed up on Megan's statements about spying on Suarez with the sisters because they thought she was lying about the molest. Kania would have questioned the various girls to obtain detailed information as to what they told each other and each of the sisters as to why she joined Megan to spy on Suarez. Kania opined that the children could have simply been relating what they had heard from others. Kania believed that the potential bias, lack of follow up, use of confusing and leading questions, and lack of training of the interviewers affected the reliability of the girls' interviews. On cross-examination, Kania acknowledged that he generally does a different kind of child's interview than the ones conducted in this case. In general, he conceded that an interviewer sometimes needed to know a little bit about what the accusation is before proceeding to question a child and sometimes needed to direct young children in an interview. Kania also conceded that it was not uncommon for children to deny molestation at first. He specifically agreed that Kaylee's description of Suarez holding

24

her against a couch and thrusting his penis against her buttocks came completely from Kaylee and not from anything the interviewer had suggested. In response to the prosecutor's questions about additional information that might help an interviewer determine the credibility of a child being interviewed, Kania acknowledged that it might be important for a law enforcement officer or a social worker conducting the interview to know that another child of similar age and under similar circumstances had described a very similar act by the accused and that having information five other children had made similar statements would potentially factor into the credibility assessment of each child interviewed. Contradictory statements by an alleged perpetrator would also factor into the credibility analysis, as would the fact that there was a 14-year-old boy who had witnessed similar described acts on some of the children by the accused. Additionally, Kania testified that whether a female child would be intimidated by facing the person that molested her in the courtroom would depend upon the particular child and that sexual touching may, in fact, not traumatize a child. Kania opined that facing the accused in court would generally not affect the willingness of a child to disclose the molestation where the child had already made such disclosure. In closing, defense counsel essentially argued that any touching of the alleged victims by Suarez had been by accident or innocently done, without any sexual intent, and that the prosecutor had not proven beyond a reasonable doubt that Suarez had committed the charged offenses. In addition to counsel specifically pointing out the weaknesses in Raymond's testimony, the improperly conducted interviews of the victims 25

as testified to by two experts, the portions of Kaylee's, S.'s and Alissa's trial testimony where each denied that certain charged touchings occurred, and the incompleteness of the investigation by Beltran, counsel noted how the prosecutor was using the uncharged case involving Sarah "to bolster" this case. Counsel stressed that after an investigation by CPS, law enforcement and the state licensing board, which included interviews of Sarah and Suarez, it was determined that there was insufficient evidence of any wrongdoing and the daycare facility at the Suarez home continued to be licensed. Counsel asked the jury not to use such incident in determining Suarez's guilt because there was no sufficient evidence to show more likely than not that that incident occurred. Counsel argued that contrary to the prosecutor's attempt to create a conflict in Suarez's statements made in his interview 10 years ago from his statements in his current interview about the incident involving Sarah, the prosecutor was incorrectly interpreting Suarez's current conversation with Beltran to posit Suarez had stated that Sarah was not masturbating at the daycare facility when what he was really saying was that Sarah masturbated before coming there. As noted above, the jury returned verdicts finding Suarez guilty of seven counts of committing lewd acts on a child under 14 years of age, acquitted him of two such acts and were hung on the remaining charges, which were subsequently dismissed. Suarez timely appealed. DISCUSSION In limine, the prosecution filed motions to admit into evidence S.'s, Kaylee's, Alissa's and Megan's videotaped forensic interviews under Evidence Code section 1360, a motion to admit evidence of Suarez's prior uncharged act of molestation of Sarah under 26

Evidence Code sections 1101 and 1108, and a motion to admit Suarez's videotaped interview with Beltran in its entirety under Evidence Code section 1220. Suarez filed an opposition to the motion to introduce evidence of his prior uncharged act and a motion to exclude any evidence of his being offered a polygraph examination and whether he accepted the offer. At the hearing on the motions, after the court noted the parties had discussed them informally in chambers the day before and had ruled on the motions regarding the videotaped interviews,2 the court turned to the matter of the contested motions relating to the uncharged misconduct under Evidence Code sections 1101 and 1108, asking defense counsel whether he had anything to add to his written motion. Counsel replied that depending upon the court's tentative ruling, he would be requesting an Evidence Code section 402 hearing regarding the admission of Goodspeed's testimony to refute the other misconduct evidence. Relying on Evidence Code sections 1101 and 1108, People v. Mullens (2004) 119 Cal.App.4th 648 (Mullens) and People v. Jenkins (1970) 3 Cal.App.3d 529 (Jenkins), the court ruled that it was prepared to find under both code sections that the evidence relating to Sarah was admissible. The court specifically noted that the evidence would be admissible under Evidence Code section 1101 on the issue of Suarez's "intent, . . . as well as admissible to show the absence of accident or mistake in the interactions between Mr.

2 The court ruled the four interview tapes of the alleged victims were admissible and that Suarez's interview would be admissible as redacted to exclude any reference to a polygraph examination. 27

Suarez and the children." In so ruling, the court found that there was substantial similarity between the uncharged misconduct and the alleged crimes in this case because they both involved lewd acts with children that occurred under the same circumstances, i.e., "an adult male, the defendant, and minor children within the day care setting"; the uncharged misconduct did not appear to be "unduly remote," as it was within a 10-year period, from 1997 to the crimes at issues here alleging occurring between 2004 and 2006; and the uncharged misconduct was not grossly inflammatory, being no more violent or repulsive than the alleged current conduct. The court also found that "[a]s far as the issue of the risk of minitrials or undue consumption of time, it does not appear that testimony from the minor child and perhaps family members would be unduly lengthy, nor would it be confusing in that it appears to be the same classification of acts, the same type of alleged offenses. So there would be no undue consumption of time or confusion of issues." The court was "likewise" prepared to find the earlier misconduct evidence admissible under Evidence Code section 1108 because that evidence was relevant and material to the issue of the defendant's propensity to commit the alleged crimes. In doing so, it noted that under Mullins, supra, 119 Cal.App.4th 648 and Jenkins, supra, 3 Cal.App.3d 529, it was also prepared to permit the defense "to submit evidence that Mr. Suarez was not prosecuted for the misconduct involving [Sarah]." The court explained that Jenkins applied the "so-called Griffin[3] Rule to situations where there was a

3

People v. Griffin (1967) 66 Cal.2d 459, 464. 28

nonprosecution. This is under the theory that because the uncharged misconduct is so sensitive and so potentially powerful, the defense must be granted the right to weaken or rebut the prosecution's evidence of the other crime." The court also noted that the fact that the other misconduct was not prosecuted would require an Evidence Code section 402 hearing to determine what kinds of questions and answers may be admitted on the issue and to determine the scope of the evidence to be admitted. The court said it would then balance all of the factors and weigh them under Evidence Code section 352. Defense counsel agreed that an evidentiary hearing was needed, noting that not only was the El Centro Police Department involved in the prior investigation, but also CPS and the State of California, Department of Social Services (DSS), which licenses daycare facilities. Counsel did not have the report from the investigation of the DSS, for which the police reports identified a Rick Peralta as conducting an investigation into the facility due to the allegations, and requested discovery assistance from the prosecutor. The prosecutor had not seen any report from Peralta, but represented that if such an investigation had been conducted, it could be assumed "there was no information revealed that would suggest there were any other acts because the day care was allowed to continue in operation." The prosecutor had no objection to the defense presenting evidence "about why the prior case was not pursed criminally," but did not think that such evidence would make the prior act inadmissible. The prosecutor had no records from CPS or DSS regarding the prior incident and had not done any investigation regarding those agencies' reports of the incident. Although the court thought it was defense counsel's obligation to subpoena the pertinent people from CPS and DSS for the 29

evidentiary hearing, it would allow counsel to try to contact them and prohibit any reference to the issue of uncharged misconduct until the Evidence Code section 402 hearing regarding Goodspeed could be held. In the meantime, the court adopted its tentative ruling, explicitly stating that after carefully weighing and evaluating all of the factors under Evidence Code section 352, it found "for all the reasons . . . stated that the relevance under [Evidence Code section] 1101 is strong and clear, and the statutory dictates of [Evidence Code section] 1108 have been met. It does relate to propensity, and the legislature has determined it shall be admitted. So the Court will permit evidence of the uncharged misconduct for all of the [stated] reasons. . . ." Further, the court noted it would "permit the defense to litigate the issue of the fact that this misconduct was not prosecuted. The precise parameters of that evidence are yet to be determined at [an Evidence Code section] 402 hearing we'll schedule as soon as possible." Several days later, the Evidence Code section 402 hearing with Goodspeed was held. Goodspeed testified that, together with another officer, he had conducted the investigation of the alleged prior incident involving Sarah and Suarez after it was reported to the police by CPS in March 1997, as a suspected child abuse that purportedly occurred on January 8, 1997. Goodspeed's colleague in the investigation interviewed Sarah's parents, who had reported the alleged incident to CPS on January 22, 1997, and Goodspeed and his colleague reviewed a forensic interview of Sarah before interviewing Suarez along with yet another officer who spoke Spanish. Suarez was very cooperative and came voluntarily to the station for the interview. After discussing all the information 30

before them, Goodspeed and his colleague determined on March 19, 1997, that "there was insufficient evidence." The lack of physical evidence, medical findings, late reporting and the absence of information that Sarah's parents had observed any improper conduct all factored into making the insufficiency determination. Also on March 18, 1997, Goodspeed had met with DSS Investigator Peralta, who was conducting an independent investigation into the allegation against Suarez because of Suarez's wife having a licensed daycare facility. Although Peralta had told Goodspeed he would contact him if he uncovered any improprieties, he never did so. On cross-examination, Goodspeed conceded that in determining the evidence was insufficient, the officers did not conclude that Sarah had been untruthful. He also agreed there had not been significant delay between the incident and the day it was reported to CPS by Sarah's mother. Although he had received information during the investigation that Sarah had an ongoing problem with masturbating prior to her having any contact with Suarez, that factor was not part of Goodspeed's opinion of insufficient evidence. In response to questioning by the court, Goodspeed could not remember for sure whether he and his colleague had discussed whether to refer the case to the district attorney for consideration, but explained that the normal procedure would be to discuss the case and determine whether "there was sufficient evidence to submit it to the district attorney for a complaint." It was not reflected in Goodspeed's report of the 1997 incident that they had consulted with a deputy district attorney about the case. Although defense counsel had no further evidence for the hearing, he renewed his opposition based on Evidence Code section 352, arguing that because there was a finding 31

of insufficient evidence that the incident occurred after a full investigation by three different agencies (CPS, DSS and the police), its probative value was "very tenuous" and not significant to overcome the prejudicial effect of its admission under Evidence Code section 1108, which would essentially require a "minitrial inside of [this] trial." Counsel was concerned that the jury would use the fact that an allegation arose once before to show that Suarez had a propensity for this type of conduct even though he was not arrested, charged or suffered a prior conviction for the earlier conduct. The court agreed with the prosecutor that the jury was entitled to full information about the prior act under Evidence Code section 1108 to use it for propensity evidence as guided by the instructions. In doing so, the trial judge specifically stated: "With regard to the admissibility of the uncharged misconduct, I'll incorporate my earlier findings made at the previous in limine hearing evaluating the relevant factors for admissibility. But I'll focus more intently here on [an Evidence Code section] 352 claim. [¶] Again, one of the potential dangers of admitting this type of evidence that is uncharged and did not result in a conviction and punishment is that there is a danger that the jury will wish to punish the defendant further for an earlier crime. However, based on Investigator Goodspeed's testimony, I think that danger is lessened because you have official child abuse investigators indicating insufficient evidence to even refer the case to the district attorney. So it will be less clear-cut before the jury that somehow Mr. Suarez went unpunished for earlier conduct. So I think that danger of prejudice is lessened. [¶] In terms of the argument that the allegation, the charge[], is tenuous, that's precisely what is likely to be the challenge to the charges here involving the children in the case at issue. I would anticipate the defense would duly challenge the credibility and accuracy of the child witnesses and perhaps argue that their claims are tenuous likewise. So the same issue would be involved and not unduly inflamed by the earlier incident. [¶] I'll simply note that in my earlier ruling I found substantial similarities in the nature and circumstances of the misconduct, no undue remoteness in time. I'll note that the case law appears to allow for 32

admissibility of this evidence. [¶] . . . Even if the defendant had earlier been acquitted of it, noting there are different standards beyond a reasonable doubt, obviously the standard we have here on behalf of a law enforcement agency is whether, based on their investigation, they believe they have solid, credible evidence that could result in prosecution. So clearly under the case law, I believe uncharged and unprosecuted misconduct is not inadmissible solely for that reason. [¶] So I have evaluated, weighed all of these factors under [Evidence Code section] 352, and I'll overrule the objection and find the probative value is not outweighed by a substantial and undue risk of prejudice, confusion, or undue consumption of time." The trial judge then turned to the "minitrial issue," asking defense counsel what evidence of nonprosecution he anticipated presenting other than the testimony of Goodspeed. Counsel represented that he had attempted to locate Peralta but believed he was no longer with DSS and that he still was considering whether to present the testimony of Goodspeed's colleague or that of the relevant person from CPS. The judge tentatively ruled that it would permit Goodspeed's testimony to "challenge, weaken, or rebut the uncharged misconduct," but would require Evidence Code section 402 hearings on any other witnesses and cautioned all counsel not to mention their potential testimony until the court could further rule on the matter. As noted above, in addition to Sarah and her mother testifying in the prosecution case regarding the 1997 alleged molest, evidence of the earlier alleged sexual act was presented in portions of Beltran's and Raymond's mother's testimony as well as in Suarez's interview in this case that was played for the jury. Goodspeed testified in the defense regarding the lack of sufficient evidence to even refer that allegation of child molestation to the district attorney for prosecution. The jury was subsequently instructed on both evidence of an uncharged offense to prove identity, intent, common plan 33

(CALCRIM No. 375) and on evidence of an uncharged sex offense to prove that Suarez was "disposed or inclined to commit sexual offenses, and . . . also [to prove he committed] the crimes of lewd act on a child under 14, as charged here." (CALCRIM No. 1191.) During closing argument, the prosecutor stressed the similarities of Sarah's case with the ones in this case, arguing that all were the same acts and the only difference was Suarez's explanations in his interviews, which were now contradictory. On appeal, Suarez contends the trial court's admission of his prior uncharged sexual offense under Evidence Code section 1108 violated his due process rights and that the court prejudicially abused its discretion under Evidence Code section 352 by admitting such evidence because it was more prejudicial than probative due to the high likelihood of juror confusion, its remoteness and its weak probative value. As we explain, although Evidence Code section 1108 has been determined not to violate a defendant's due process rights (People v. Falsetta (1999) 21 Cal.4th 903, 922 (Falsetta),4 in this particular case, we determine that the trial court prejudicially abused its discretion in admitting the evidence of the uncharged 1997 allegation of child molest against Suarez. A. Pertinent Law Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's 4 Suarez acknowledges that his due process challenge to Evidence Code section 1108 has been rejected by our Supreme Court in Falsetta, supra, 21 Cal.4th 903, raising the issue only to preserve it for future review by the United States Supreme Court. 34

propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current sexual offense charge. (Evid. Code, § 1108, subd. (a).)5 Although before Evidence Code section 1108 was enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct (see Evid. Code, § 11016; Falsetta, supra, 21 Cal.4th 903, 911, 913), its enactment created a statutory exception to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses in cases charging such conduct to prove the defendant's disposition to commit

5 Evidence Code section 1108, subdivision (a), provides that "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." This section allows admission, in a criminal action in which the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's commission of another listed sexual offense that would otherwise be made inadmissible by Evidence Code section 1101, subdivision (a). The prior and charged offenses are considered sufficiently similar if they are both sexual offenses enumerated in Evidence Code section 1108, subdivision (d)(1)(A) through (F). (People v. Frazier (2001) 89 Cal.App.4th 30, 41 (Frazier).) 6 Evidence Code section 1101 provides in relevant part: "(a) Except as provided in this section and in Section[] . . . 1108 . . ., evidence of a person's character or trait of his . . . character (whether in the form of . . . evidence of specific instances of his . . . conduct) is inadmissible when offered to prove his . . . conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his . . . disposition to commit such an act." To be relevant on the issue of intent, uncharged crimes need only be sufficiently similar to a charged offense to support the inference that the defendant probably harbored the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) 35

the charged offense. (Id. at p. 911.) The California Supreme Court has ruled that section 1108 is constitutional. (Id. at pp. 910-922.) However, because Evidence Code section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence on whether it is admissible under Evidence Code section 352,7 any objection to such evidence, as well as any derivative due process assertion, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]" (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) As our Supreme Court stated in Falsetta, in balancing such Evidence Code section 1108 evidence under Evidence Code section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood 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 availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.) In 7 Evidence Code section 352 provides: "The court in its discretion may 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, or confusing the issues, or of misleading the jury." 36

evaluating such evidence, the court must determine "whether '[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.' " (People v. Harris (1998) 60 Cal.App.4th 727, 737.) On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court's discretion. (Kipp, supra, 18 Cal.4th at p. 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The weighing process under section 352 "depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.) We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling " 'falls outside the bounds of reason.' [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371.) In other words, we will only disturb a trial court's ruling under Evidence Code section 352 where the court has exercised its discretion in a

37

manner that resulted in a miscarriage of justice. (Frazier, supra, 89 Cal.App.4th at p. 42.) B. Analysis Here, even though the record shows the trial court used the proper terminology to find that the 1997 uncharged accusation against Suarez was of the same nature and similarity to the currently charged offenses because both cases involved an adult man who allegedly inappropriately touched minor girls in a daycare setting and then used the required words to weigh such probative value against the prejudice in its admission, the record also reflects that the court's reasoning and weighing process was deficient. Despite being aware of the potential problem in admitting the uncharged misconduct evidence in this case due to the real danger that the jury would want to punish Suarez for his earlier crime, the court incorrectly reasoned that the admission of Goodspeed's testimony regarding insufficient evidence to charge Suarez for the earlier alleged offense would somehow convince the jury not to punish him because it would be "less clearcut . . . that somehow Mr. Suarez went unpunished for earlier conduct [which would lessen the prejudice]." Although the court permitted defense counsel to present evidence that the earlier accusation against Suarez had been found by law enforcement after an investigation to be insufficient for prosecution, the admission of such evidence in light of this record could not lessen the prejudicial effect of the other misconduct evidence because it could not "[ensure] that the jury would not be tempted to convict the defendant simply to punish him for the other offense[, or have their attention] diverted by having to

38

make a separate determination whether defendant committed the other offense[]." (Falsetta, supra, 21 Cal.4th at p. 917.) Clearly this was a case where there was no certainty the earlier misconduct was committed. The trial court minimized this factor by using it to strengthen the relevancy of the alleged prior misconduct by finding such tenuousness to be similar to the current crimes because it assumed defense counsel would argue the present charges were also "tenuous." In doing so, the court failed to appreciate that in the current case, as compared to the earlier alleged incident, there were not only allegations of sexual misconduct, but after an investigation there was also probable cause to file a criminal complaint charging such misconduct, to arrest Suarez, and to then file the felony information on which the trial was being conducted. The court essentially equated the uncharged misconduct with an acquittal, which it is not. In an acquittal situation, there necessarily has been probable cause to go forward with charges; here there had not been such probable cause. Although the court correctly pointed out that the fact there is a lesser standard of finding probable cause that other misconduct occurred than the beyond the reasonable doubt standard required for the current crimes does not alone preclude the admission of evidence of other uncharged or unprosecuted misconduct, it does not appear that the court fully considered such factor as one that could cause jury confusion and the likelihood of distracting the jurors from their main inquiry in this case. Nor did the court carefully assess the risk of the minitrial within the trial that was being launched by its insufficient evaluation of the consumption of time involved with the admission of the earlier alleged misconduct. Although Sarah's testimony and that of her mother may not have been 39

unduly lengthy, they were not the only witnesses or evidence presented about the earlier incident. As noted earlier, in addition to their testimony, Beltran in the prosecution case and Goodspeed in the defense case testified about the earlier incident, with Goodspeed being challenged at length on cross-examination. Other witnesses in both the prosecution and defense cases were also questioned about their knowledge of the earlier incident and how such might effect their answers. Evidence concerning the earlier incident was additionally presented in the prosecution case via Suarez's interview. Besides the above consumption of time to present evidence on the earlier incident, the evidence necessitated lengthy discussions, an evidentiary hearing, lengthy jury instructions and a good portion of closing arguments. Moreover, even though the alleged prior misconduct and current misconduct may have been of the same classification of offenses, and technically were no weaker or more inflammatory than each other, the burden of defending against the uncharged offense was unusually great and consumed as much time as defending the current charges. Additionally, because the current accusations of child molestation were being used by the prosecution to attack Goodspeed's insufficient evidence finding to charge Suarez with the earlier misconduct as well as using that prior conduct to bolster the current charges, there was a real, strong likelihood that the uncharged offense evidence would confuse, mislead or distract the jury. (Falsetta, supra, 21 Cal.4th at p. 917.) That the trial court failed to sufficiently consider the extreme unfair prejudice caused by requiring Suarez to defend two trials in one and to have the jury determine whether the uncharged misconduct had occurred as well as determining whether the current charges had been committed, we 40

cannot find that it properly weighed the prejudice against the probative value in a manner that protected Suarez's right to a fundamentally fair trial. (See Jennings, supra, 81 Cal.App.4th at p. 1314.) Thus, under the unique facts and issues involved in this case, we conclude the trial court's apparent "mechanical application of automatic rules" was unreasonable and that it abused its discretion in weighing the proposed earlier misconduct evidence under Evidence Code section 352 and admitting it under Evidence Code section 1108. C. Prejudice The question remains, however, whether the improper admission of such evidence requires reversal. Generally, " 'the erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded.' [Citations.]" (People v. Walker (2006) 139 Cal.App.4th 782, 808.) The People argue that any error in the admission of the evidence of the earlier uncharged sexual misconduct by Suarez was harmless because the given jury instructions on the matter clearly told the jury about the limited use of such evidence and the trial court also found the evidence admissible under Evidence Code section 1101, subdivision (b) on the issues of intent and common scheme. At oral argument, the People additionally argued that any error was harmless because the evidence of the current molestation was strong. Although Suarez does not challenge the jury instructions concerning the earlier alleged sexual misconduct as being incorrect or misleading or challenge the admission of the earlier act evidence under Evidence Code section 1101, he asserts the error is "extraordinarily" prejudicial because in this close 41

case, which is evidenced by the verdicts (with acquittals on two counts and six deadlocked counts that were eventually dismissed), the prosecution was permitted to bolster its position in the current case by improperly strengthening the probativeness of the "otherwise weak" earlier alleged molest case, which the People concede was substantially similar, by suggesting consideration of the facts in the current investigation to prove the sufficiency of that prior misconduct. We agree with Suarez that on this record the erroneous admission under Evidence Code 1108 of evidence of the prior alleged incident was not harmless. As noted above, the admission of the evidence of the 1997 alleged misconduct by Suarez was so intertwined with the evidence concerning the current charges that despite the giving of correct instructions and the admission of the evidence for the limited purposes of intent and common scheme, we believe that a result more favorable to Suarez would have been reasonably probable had all evidence of the earlier accusation been excluded. By its admission under Evidence Code section 1108, such evidence was essentially available for any purpose for the jury to use in finding Suarez guilty of the current charges while at the same time the jury was able to use the facts underlying the current charges to prove the earlier misconduct. The admission of such evidence also necessarily played a role in defense counsel's various tactical decisions and permitted the prosecutor to have witnesses other than Sarah and her mother testify as to the earlier incident in addition to the current charges and to heavily cross-examine defense witnesses on the issue. As mentioned before, the ruling admitting the evidence set in motion a trial within a trial, which unfolded in such a circular fashion that we simply cannot have 42

confidence that the jury used the earlier crimes evidence for only the limited purpose of Suarez's intent or common scheme or plan. We are thus persuaded that the error in the admission of the earlier misconduct evidence resulted in a miscarriage of justice. Accordingly, the judgment must be reversed.8 DISPOSITION The judgment is reversed.

HUFFMAN, Acting P. J. WE CONCUR:

McINTYRE, J.

IRION, J.

8 Our determination makes it unnecessary to address Suarez's numerous other issues raised on appeal. 43


								
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