16 Cal. App. 5th 494
Cal. Ct. App. 5th2017Background
- Defendant Richard Gonzales, Jr. convicted of multiple child-sex offenses (oral copulation, lewd acts, sexual penetration) involving victim L.W.; total sentence 45 years to life with some sentences stayed under Penal Code §654.
- Prosecution introduced testimony by the victim describing additional uncharged sexual acts by Gonzales (victim testified to multiple uncharged incidents, including penetration), plus corroborating evidence (mother, third party confrontation, and a sexual-assault nurse who found hymenal injury).
- Trial court admitted the victim's testimony about uncharged acts under Evidence Code §1108 and instructed the jury with CALCRIM No. 1191 (use of uncharged-sex-offense evidence) and CALCRIM No. 1193 (CSAAS expert limitations).
- Defense argued CALCRIM No. 1191 was improper when uncharged acts are testified to by the victim herself (risking corroboration of the victim by her own testimony) and that CALCRIM No. 1193 was misleading about CSAAS limits.
- Appellate court affirmed convictions, struck fines imposed on stayed counts, reversed the order requiring defendant to pay public defender fees (no remand for ability-to-pay hearing), and discussed the proper application of CALCRIM No. 1191 and No. 1193.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of victim's testimony of uncharged sexual acts (CALCRIM No. 1191) | Prosecutor: §1108 permits admission of other sexual-offense evidence (from any witness) subject to §352; instruction properly explains limited use and burden for uncharged acts (preponderance). | Gonzales: Instruction improperly allows the victim to corroborate her own testimony by proving uncharged acts only by a preponderance, risking dilution of reasonable-doubt standard and irrational inference. | Court: §1108 applies to victim testimony; CALCRIM No. 1191 correctly instructs jury; any error harmless given strong corroborating evidence. |
| CSAAS expert instruction (CALCRIM No. 1193) | Prosecutor: CSAAS testimony admissible only to evaluate believability and inconsistency, not to prove defendant committed offenses; instruction reflected that. | Gonzales: Instruction is internally inconsistent and could allow CSAAS to be used as proof of charged or uncharged acts, undermining due process. | Court: Instruction is coherent in context of testimony; CSAAS not evidence of commission; any error harmless. |
| Burden/misapplication risk from using preponderance standard for propensity evidence | Prosecutor: CALCRIM explains preponderance for uncharged acts and reiterates that charged offenses still require proof beyond reasonable doubt. | Gonzales: Allowing a lower proof level for uncharged acts by the victim risks juror confusion and effectively lowers the guilt standard for charged offenses. | Court: Instruction acceptable; recognized potential confusion but found no prejudice here; later amendments to CALCRIM distinguish charged vs uncharged propensity evidence. |
| Fines and fee orders | People conceded fines on stayed counts and PD-fee error; trial court improperly imposed fines on stayed counts and ordered PD-fee without ability-to-pay hearing. | Gonzales: Challenged fines for stayed counts and PD-fee order. | Court: Struck fines on stayed counts; reversed PD-fee order and did not remand for ability-to-pay hearing given lengthy sentence. |
Key Cases Cited
- People v. Stanley, 67 Cal.2d 812 (recognizes problem of victim's testimony about uncharged crimes and endorses §352 balancing)
- People v. Scott, 21 Cal.3d 284 (discusses inadmissibility concerns of victim testifying to uncharged sexual conduct pre-§1108)
- People v. Falsetta, 21 Cal.4th 903 (explains §1108's purpose to inform trier of fact about defendant's other sex offenses for credibility assessment)
- People v. Reliford, 29 Cal.4th 1007 (addresses that §1108 removed per se exclusion and requires §352 balancing; supports CALCRIM-style instruction)
- People v. Ennis, 190 Cal.App.4th 721 (upholds admission of uncharged-offense testimony from same witness under §352)
- People v. McAlpin, 53 Cal.3d 1289 (CSAAS not admissible to prove abuse occurred; admissible to explain victim's post-abuse behavior)
- People v. Villatoro, 54 Cal.4th 1152 (charged offenses used as propensity evidence must be proved beyond a reasonable doubt)
- People v. Cruz, 2 Cal.App.5th 1178 (criticizes instructing propensity proof by preponderance for charged offenses; potential to lower standard of proof)
- People v. Carey, 41 Cal.4th 109 (jurors presumed capable of understanding instructions)
- People v. Sharret, 191 Cal.App.4th 859 (fines under §290.3 may not be imposed on counts stayed under §654)