People v. Crespo CA5

Filed 7/25/16 P. v. Crespo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F071076 Plaintiff and Respondent, (Super. Ct. No. BF156441A) v.

JOSE SALAZAR CRESPO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. 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, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Smith, J.

Appellant Jose Salazar Crespo appeals his conviction on a single count of sexual penetration with a foreign object while the victim is unconscious (Pen. Code, § 289, subd. (d)). Appellant contends he was prejudiced when the trial court erroneously admitted evidence of uncharged sexual misconduct. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant was convicted following a jury trial. At trial, several somewhat differing versions of the relevant events were recounted. However, given the issues raised in this appeal, these differences are not material and only a few are specifically noted below for context. On August 9, 2013, the victim, L.S., traveled with her children from Santa Clarita to Bakersfield for a weekend dentist appointment. Late in the evening on August 9, 2013, the victim met up with her brother-in-law and his wife, G.S. and C.S., planning to stay at their house overnight.1 G.S. and C.S. were married and living in a three-bedroom home with appellant and appellant’s teenage son, G.S.’s half-brother, J.S. Upon arriving in Bakersfield, the victim, her children, G.S., C.S., and J.S. went to the home of one of C.S.’s friends to socialize. They watched a movie, talked about birthday plans, and G.S. and the victim drank some alcohol. The family then returned to G.S.’s house where they continued socializing and G.S. and the victim continued to drink. Sometime later, well after midnight, everyone went to bed. The victim slept on the floor in the living room with her children, while G.S., C.S., and J.S. retired to their rooms. Appellant, who worked the night shift as a truck driver, was not present. At some point in the night, the victim awoke, needing to use the restroom. She attempted to use the bathroom in the hall, but found it was occupied, so she entered