California Court of Appeal Sep 22, 2015 No. E061746Unpublished
Filed 9/22/15 P. v. Macalingay CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061746
v. (Super.Ct.No. RIF1206948)
QUINTIN A. MACALINGAY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Each of defendant Quintin A. Macalingay’s three stepgranddaughters testified that
he molested her. He had a consistent modus operandi; when one of them was sitting on
his lap, he would fondle her breast area and touch her crotch.
In addition, one of defendant’s adult stepdaughters (the victims’ aunt) testified
that, when she was approximately 16, defendant repeatedly fondled her breasts while she
that “propensity” evidence is per se unduly prejudicial to the defense.’ [Citation.]”
(People v. Villatoro (2012) 54 Cal.4th 1152, 1160.)
“‘[Evidence Code s]ection 1108 preserves the trial court’s discretion to exclude
evidence under [Evidence Code] section 352 if its prejudicial effect substantially
outweighs its probative value. [Citations.] In deciding whether to exclude evidence of
another sexual offense under section 1108, “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 sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” [Citation.] Like any ruling under section 352, the trial court’s
8
ruling admitting evidence under section 1108 is subject to review for abuse of discretion.’
[Citation.]” (People v. Avila (2014) 59 Cal.4th 496, 515.)
Evidence that defendant had a propensity to commit sexual offenses against
underage girls was substantially probative. “‘In the determination of probabilities of
guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for
excluding such evidence is not that it lacks probative value, but that it is too relevant.”
(People v. Fitch (1997) 55 Cal.App.4th 172, 179.) It was particularly probative in this
case, because it tended to prove that defendant acted with a sexual intent when he
committed the charged crimes.
Defendant argues that the uncharged offenses were not sufficiently similar to the
charged offenses. However, defendant’s fondling of Christine’s breasts under her clothes
was similar to his fondling of the victims’ breasts under their clothes. In addition, as
defendant concedes, it is probative that in both instances, he targeted young female
relatives when left alone with them. (People v. Cottone (2013) 57 Cal.4th 269, 286 [“The
conduct in this case, which involved touching the vaginal area of his young sister, was
manifestly relevant on the question of whether defendant sexually assaulted another
young female relative.”].) It is also significant that they were related to him not by blood,
but through marriage.
Defendant points to two differences. First, Christine was older and more
physically mature than the other victims. Second, defendant molested Christine when she
was in her bed and the other victims when they were on his lap. In both instances,
9
however, he took advantage of the ambiguity of the circumstances; with Christine, he
claimed to be pulling a blanket over her, and with his stepgranddaughters, he would claim
to be just holding them on his lap. In any event, despite these differences, the evidence
still had substantial probative value because it showed that defendant had a predisposition
to molest young female relatives in his home, starting by fondling their breasts. Indeed,
the differences tended to show that this predisposition transcended any particular age or
other circumstances.
Defendant also argues that the evidence, dating from approximately 17 years
before the charged offenses, was remote. “Remoteness of prior offenses relates to ‘the
question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory,
a substantial gap between the prior offenses and the charged offenses means that it is less
likely that the defendant had the propensity to commit the charged offenses. However,
. . . significant similarities between the prior and the charged offenses may ‘balance[] out
the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in
nature to the charged offenses, the prior offenses have greater probative value in proving
propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th
274, 285.) Here, given the significant similarities noted above, the lapse of time simply
meant that defendant’s predisposition was persistent and long-standing.
Next, defendant notes that the jury learned that he had never been punished for the
uncharged offenses. “[T]he circumstance that the uncharged acts resulted in a criminal
conviction and a substantial prison term decreases, in two ways, the potential for
10
prejudice, undue consumption of time, or confusing the issues. [Citation.] First, the jury
[i]s not tempted to convict defendant of the charged offenses, regardless of his guilt, in
order to assure that he would be punished for the uncharged offenses . . . . Second, the
attention of the jury [i]s not diverted to a determination whether or not defendant had
committed the uncharged offenses . . . . [Citation.]” (People v. Balcom (1994) 7 Cal.4th
414, 427.)
“The potential for prejudice is decreased, however, when testimony describing the
defendant’s uncharged acts is no stronger or more inflammatory than the testimony
concerning the charged offense. [Citation.]” (People v. Tran (2011) 51 Cal.4th 1040,
1047; accord, People v. McCurdy (2014) 59 Cal.4th 1063, 1099.) Defendant concedes
that the uncharged offenses were no more inflammatory than the charged offenses.
Defendant also concedes that “consumption of undue time . . . is of no moment herein.”
Thus, we cannot say that the evidence of the uncharged offenses was unduly prejudicial.
We therefore conclude that the trial court did not err by admitting the evidence that
defendant molested Christine.
Essentially as a fallback argument, however, defendant claims that, even if the trial
court properly admitted evidence that he molested Christine, it erred by admitting the
evidence that he showed Christine pictures of naked women.
Basically, defendant argues that this evidence was not sufficiently similar to any of
the charged conduct, and therefore it should have been excluded under Evidence Code
section 352. This overlooks the fact that it was relevant for more than one reason. First,
11
it was relevant to show a predisposition to commit sexual offenses under Evidence Code
section 1108.2 Second, however, it was also relevant under Evidence Code section 1101,
subdivision (b) to show that defendant entertained a sexual intent toward Christine.
When defendant touched Christine, he claimed that he was just pulling a blanket over her.
The fact that he later showed her sexually tinged photographs was probative to rebut this.
Evidence that he had a sexual intent toward Christine, in turn, was probative to show that
he had a sexual intent toward the victims.
“‘The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to
prove intent, the uncharged misconduct must be sufficiently similar to support the
inference that the defendant “‘probably harbor[ed] the same intent in each instance.’
[Citations.]” [Citation.]’ [Citation.]” (People v. Leon (2015) 61 Cal.4th 569, 598.)
Here, the very fact that defendant chose the same victim — Christine — for both the
uncharged touching and the uncharged display of the photographs made the latter
significantly probative of his intent during the former. (See People v. Hoover (2000) 77
Cal.App.4th 1020, 1026 [Fourth Dist., Div. Two].)
2 It is a crime to show “harmful matter” to a minor. (Pen. Code, § 288.2, subd. (a); see also Pen. Code, § 313, subd. (a).) This is a “sexual offense” within the meaning of Evidence Code section 1108. (Evid. Code, § 1108, subd. (d)(1)(A).) In addition, as defendant concedes, annoying or molesting a child (Pen. Code, § 647.6, subd. (a)(1)) is also a “sexual offense” (Evid. Code, § 1108, subd. (d)(1)(A)).
12
The evidence regarding the nude photographs was not particularly inflammatory
nor particularly time-consuming. Accordingly, the trial court did not err by admitting it.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.