People v. Crego CA3

Filed 11/1/13 P. v. Crego CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C067152

v. (Super. Ct. Nos. 09F07220 & 10F07365) DAVID THOMAS CREGO,

Defendant and Appellant.

On counts one and two, a jury convicted defendant David Thomas Crego of lewd and lascivious acts with a 15-year-old child. The trial court declared a mistrial on count three. Nonetheless, the trial court had instructed the jury that if the jury determined, either beyond a reasonable doubt or by a preponderance of the evidence, that defendant committed the act alleged in count three, the jury could consider that act in determining whether defendant was disposed or inclined to commit the offenses charged in counts one and two.

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Defendant challenges that instruction, claiming it violated his federal due process rights because the trial court did not conduct an Evidence Code section 3521 analysis, and because the instruction improperly included references to both the beyond-a-reasonable- doubt standard and the preponderance-of-the-evidence standard. We conclude the trial court did not commit instructional error. We will affirm the judgment. BACKGROUND One afternoon in March 2009, defendant watched a movie in his living room with one of his stepgranddaughters and her 15-year-old half-sister, J.E. J.E. was lying on a sofa covered by a blanket; defendant sat near her head. J.E. testified that defendant touched her breast and buttocks during the final 30 minutes of the film. M.K was another stepgrandaughter of defendant‟s. She began living with her grandmother and defendant when she was in sixth grade. M.K. testified that one evening when she was 12 years old and in seventh grade, she fell asleep watching television with defendant and woke up to discover his hand on her breast. In addition, another stepgranddaughter, A.C., testified that she remembered many years earlier falling asleep while watching television with defendant at his home. She said she woke up to find his hand on her upper thigh. Count one of the amended consolidated information alleged that defendant violated Penal Code section 288, subdivision (c)(1), committing a lewd and lascivious act against J.E. by touching her breasts. Count two alleged that defendant violated Penal Code section 288, subdivision (c)(1), committing a lewd and lascivious act against J.E. by rubbing her buttocks. And count three alleged that defendant violated Penal Code section 288, subdivision (a), committing a lewd and lascivious act against M.K.