People v. Minton CA1/3

Filed 1/15/16 P. v. Minton CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A144668 v. RICKY WRIGHT MINTON, (Solano County Super. Ct. No. FCR310409) Defendant and Appellant.

Defendant Ricky Wright Minton appeals his conviction for indecent exposure with a prior indecent exposure conviction. (Pen. Code, § 314, subd. (1).) His sole contention on appeal is that the trial court erred in admitting evidence of an uncharged prior sexual offense that assertedly lacks sufficient similarity to the charged offense to justify its admission. We do not agree and therefore shall affirm. Background Two witnesses testified at defendant’s jury trial, one as to the charged offense and the other as to the prior uncharged offense. As to the charged offense, Derrick Mapes testified that on October 6, 2014, he was shopping with his five-year-old son at Raley’s Market in Suisun City. As he was leaving the store with his son in his shopping cart, he passed by defendant sitting on a nearby bench, and heard somebody say, “Hey, little boy, come here.” He turned in the direction of the voice and saw defendant “with his pants down around his knees with his private parts in his hand. [¶] . . . [¶] . . . I just saw that he had his private parts in his hand, and he was addressing it towards my son . . . .” 1 When he returned his cart to the cart rack about

1 Mapes testified that by “his private parts” he meant defendant’s penis.

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30 to 45 seconds later he saw that defendant had his pants back on. He then returned to his car and called the police. Over defendant’s objection, Elizabeth Weinstein testified to the uncharged offense. On November 12, 2007 she was walking with her 12-year-old son in the factory outlet stores in Vacaville. When her son stopped to pick up some change from the ground, defendant was sitting on a nearby bench. She heard defendant say, “Nice ass” and “I’d like to get that ass. I would like to fuck that ass. Hey, dumb fuck, there is money behind you, change behind you.” Weinstein called to her son to come with her and defendant, calling the boy by the wrong name, spoke: “Jason, don’t worry about that.” As she and her son departed, Weinstein observed defendant following another child and making towards him “the same kinds of comments that were made to my son. Just inappropriate comments.” Prior to the start of trial, the court heard the prosecution’s request to present evidence of the 2007 prior offense, pursuant to Evidence Code section 1108,2 and the defendant’s motion to exclude that evidence. Defendant cited People v. Jandres (2014) 226 Cal.App.4th 340 in support of its motion and urged the applicability of section 352. Defense counsel argued that “the instant offense factually, and as charged, does differ so much from the conduct in 2008 and from the case here in Solano, that it is very significant if you consider also the remoteness.” To avoid undue consumption of time and to minimize undue prejudice, counsel argued alternatively that the jury should simply be advised that defendant was convicted of the prior offense without any testimony as to the facts of the offense. The court granted the prosecution’s request and denied defendant’s motion with the following explanation: “The fact that, in a previous instance, he engaged in a sexually-related request or commented toward another child victim in this case, is precisely the type of evidence that is contemplated under [section] 1108. [Section] 1108 tips the balance in favor of its admissibility. The only limitation seems to be [section]