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Name: People v. Escudero
Case #: C060342
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/30/2010

There was no error in admitting evidence of uncharged assaults on adult women pursuant to Evidence Code section 1108 at a trial on charges of committing a lewd and lascivious act on a child under the age of 14. (Pen. Code, sec. 288, subd. (a).) The victim, age seven, was sleeping with her mother and the defendant when she awoke to find he had removed her underwear and was touching her private areas. He placed her hand on his penis, held her down, and told her it was “okay.” When she reported it to her mother, the mother made the defendant move out. It was two years later after the defendant had moved back in that there was a report to law enforcement. A teenaged sister of the victim had moved out of the house after complaining about the defendant’s sexual advances. At trial the teenaged sister and her teenaged friends testified about the defendant’s lurid comments and groping. Two adult women testified to events when they had been asleep and the defendant had initiated sexual assaults. In one instance the defendant’s wife was sleeping nearby and in the other instance he returned immediately after the woman had a friend force him to leave her house. Evidence Code section 1108 provides that when one is charged with sex offenses, evidence of uncharged sex crimes is admissible unless the trial court excludes it pursuant to Evidence Code section 352. The charged and uncharged offenses do not require the similarity necessary under Evidence Code section 1101. It is enough that they are sex offenses listed in section 1108. The reviewing court found no abuse of discretion because of significant similarities in the assaults: all three were sleeping and vulnerable at the time of the assaults and he seized on opportunities that were particularly risky. There was further no abuse of discretion in admitting the testimony of the teenaged girls pursuant to Evidence Code section 1101, subdivision (b) as evidence of intent and absence of mistake. The evidence further suggested the defendant does not differentiate based upon age in selecting who to sexually assault.