People v. Navarrete CA3

Filed 9/20/22 P. v. Navarrete CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095516

Plaintiff and Respondent, (Super. Ct. No. 19FE010537)

v.

JOSE ARTURO NAVARRETE,

Defendant and Appellant.

A jury found defendant Jose Arturo Navarrete guilty of sexually abusing a younger relative. He contends the trial court abused its discretion by admitting, under Evidence Code section 1108,1 propensity evidence—an uncharged rape of an adult woman—that was unduly prejudicial. Defendant further contends section 1108 is unconstitutional. We affirm.

1 Undesignated statutory references are to the Evidence Code.

1

I. BACKGROUND Defendant was convicted of 10 counts of sexual offenses—lewd and lascivious acts, sexual intercourse or sodomy, and oral copulation (Pen. Code, §§ 288, subd. (a), 288.7, subds. (a), (b))—against a relative when she was around five or six years old. Such abuses occurred around 2015 when defendant was 19 to 20 years old. On several occasions, with I.N. asleep in the same room, defendant sexually assaulted the girl. Defendant denied abusing her. He also denied an uncharged offense: According to I.N., late one night in 2016 or 2017, defendant coaxed a visibly intoxicated woman in her mid-twenties into the backseat of his car while I.N. was in the front passenger seat. Defendant drove briefly, stopped, grabbed a condom out of the middle console, and got in the back seat of the car. I.N. remained in the front, overhearing defendant “engage in sexual relations with her but against her will,” while she repeatedly asked defendant to stop, crying and struggling throughout. Over defense counsel’s objections, the trial court ruled I.N.’s testimony would be “well within the ambit of [section] 1108 . . . . It is precisely what is contemplated by the [L]egislature and the passage of that statute.” The court reasoned, under section 1108, that the differences in the conduct, “having primarily to do with the age of the victim . . . [wa]sn’t a pivotal consideration.” The court concluded that the evidence would be “probative, but it [wa]s not unduly prejudicial, particularly given the multiple counts presently pending relating to a child molest [sic] itself as opposed to a sexual offense against a non-child. It[ was] not unduly time consuming. It would only take a few minutes of inquiry from the proffering witness. It [wa]s not confusing. It [wa]s fairly explicit, direct.” Using CALCRIM No. 1191A, the trial court instructed the jury to consider I.N.’s testimony of the uncharged rape “only if the People have proved by a preponderance of the evidence that the Defendant, in fact, committed the uncharged offense.” The court further instructed: “If you conclude that the Defendant committed the uncharged offense,