244 Cal. App. 4th 1161
Cal. Ct. App.2016Background
- Defendant Osman Gerardo ZarateCastillo lived with the victim’s family when the victim was about seven; the victim later testified he repeatedly touched her vagina (over and under clothing) while she was alone watching TV; she had limited memory about other contact.
- Detective testimony relayed the victim’s prior statement that defendant also touched her chest both over and under clothing; the prosecution charged 11 counts including two counts of sexual penetration of a child ≤10 (Pen. Code § 288.7(b)), one count of forcible sexual penetration (Pen. Code § 289(a)(1)(A)), and eight lewd act counts (Pen. Code § 288(a)).
- The prosecution sought and the court admitted evidence under Evid. Code § 1108 (and § 1101(b)) that defendant previously committed sexual acts against the victim’s older half sister; the half sister testified to similar molestation when she was about the same age.
- The jury convicted defendant on all 11 counts; the court imposed a determinate term of 20 years plus an indeterminate term of 30 years-to-life. A consecutive two-year term was imposed for a lewd-act count based on touching the victim’s chest over clothing (count 3).
- On appeal the People conceded insufficiency as to count 3; defendant additionally challenged admission of the prior-offenses evidence and certain jury instructions regarding intent for penetration offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for count 3 (second over-clothing chest touching) | Evidence (Detective Price’s testimony) supported repeated chest touching including over clothing | No evidence the over-clothing chest touch happened more than once; prosecution’s proof was deficient | Reversed: People conceded and court found record lacks evidence of a second over-clothing chest touching; count 3 vacated and corresponding 2-year term stricken |
| Admissibility of prior sexual offenses (Evid. Code § 1108; § 352) | Prior acts against half sister were highly probative of propensity, common scheme, intent; admissible under § 1108 | Evidence was remote, unduly prejudicial, and likely to confuse or mislead jury; § 352 required exclusion | Affirmed: Trial court did not abuse discretion; similarities and probative value outweighed prejudice; admission did not violate due process |
| Jury instructions: whether sexual penetration counts are general or specific intent crimes | Penetration statutes define penetration as for purpose of sexual arousal/abuse, which requires specific intent; instructions must reflect that | Trial court classified counts 1, 10, 11 as general intent (error), but later instructions referenced purpose for sexual arousal/abuse | Error acknowledged but harmless beyond a reasonable doubt: later element instructions properly required purpose (sexual arousal/abuse), jury could not reasonably have reached different result |
Key Cases Cited
- People v. Falsetta, 21 Cal.4th 903 (1999) (factors for admissibility of prior sexual-offense evidence under Evid. Code § 352 and § 1108)
- People v. Miramontes, 189 Cal.App.4th 1085 (2010) (standard of review for admitting other sexual acts evidence)
- People v. Loy, 52 Cal.4th 46 (2011) (risk of jury using prior-offense evidence to punish for uncharged crimes)
- People v. McCoy, 215 Cal.App.4th 1510 (2013) (forcible sexual penetration requires intent for sexual arousal/abuse and is a specific-intent crime)
- People v. Dillon, 174 Cal.App.4th 1367 (2009) (discussed and disagreed with on whether forcible sexual penetration is a general-intent crime)
- People v. Hood, 1 Cal.3d 444 (1969) (distinction between general intent and specific intent crimes)