Certified for Partial Publication.
A jury found defendant Jon Gary Schnabel guilty of 15 counts of child molestation involving three different girls. The trial court sentenced him to state prison for 375 years to life.
On appeal, defendant raises the following contentions:
FACTUAL AND PROCEDURAL BACKGROUND
Molestation Of C.J. (counts one-five)
C.J. met defendant when was she was 12 years old, and he was her parents' realtor.
Molestation Of T.B. (counts six-ten)
T.B. was a 20 year-old college student at the time of trial. Before she moved away to college, T.B. and her family lived a few houses away from defendant in Citrus Heights. Defendant was "good friends" with her family, and he was like an uncle to her. Defendant molested her for the first time when she was approximately seven years old. Defendant unzipped his pants, pulled out his penis, and "suggested that [T.B.] touch it." She complied.
During other incidents at defendant's house, he would ask her to put wart medication on his penis, and again she complied. These incidents occurred from the time T.B. was 7 years old to the time she was 12.
There were incidents when T.B. was 9 or 10 years old when defendant made her put her mouth on his penis, and he put his hand up her skirt or shorts and stroked her vagina.
At some point, defendant moved to Granite Bay. T.B. recalled one incident there when she was 11 years old and defendant touched her thigh, unzipped his pants, and directed her to apply medication to his penis.
Molestation Of S.J. (counts eleven-fifteen)
S.J. was 16 years old at the time of trial. She met defendant was she was seven or eight years old, and he was her parents' realtor. She frequently visited defendant's house with her family. On 5 to 10 occasions, defendant had her move her hand up and down his penis so it would become "big" so he could apply wart medication.
Defendant made S.J. "watch a video on how to give oral sex" and look at Playboy magazines. He later made her put her mouth on his penis.
Prior Acts Of Molestation
N.J. was 49 years old at the time of trial. She met defendant when she was seven years old, and he was living in her neighborhood with a family friend of NJ.'s. Once, while N.J. was at her friend's house, defendant exposed his penis, testicles, and legs, told her that he had hurt his leg, and said that he wanted her to "rub it for him." When N.J. started rubbing his leg, defendant took NJ.'s hand, put it on his penis, and with his hand on top of hers, starting massaging his penis. He also had her rub his inner thigh and put her lips on his penis. As a result of these acts, defendant pled guilty in 1963 to committing a lewd act on N.J.
The Court Did Not Err In Admitting Into Evidence Defendant's Prior Sex Offenses And In Instructing The Jury On Their Use
Defendant contends the admission of his prior sex offenses pursuant to Evidence Code section 1108 denied him a fair trial and violated his right to due process
Defendant's constitutional challenge to Evidence Code section 1108 was rejected in People v. Falsetta (1999) 21 Cal.4th 903, 922, 89 Cal.Rptr.2d 847, 986 P.2d 182. We are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)
As to defendant's challenge to the instruction, it is based on his assertion that the instruction on the use of prior sex offenses "wholly swallowed the `beyond reasonable doubt' requirement." The California Supreme Court has rejected this argument in upholding the constitutionality of the 1999 version of CALJIC No. 2.50.01. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, 130 Cal.Rptr.2d 254, 62 P.3d 601.) The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to CALCRIM No. 1191 (which was given here) in its explanation of the law on permissive inferences and the burden of proof.
The judgment is affirmed.
SIMS, Acting P.J., and BUTZ, J., concur.
The version of CALJIC No. 2.50.02 given to the jury in Reliford reads, in pertinent part, as follows: "If you find that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused, [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide." (People v. Reliford, supra, 29 Cal.4th at p. 1012, 130 Cal.Rptr.2d 254, 62 P.3d 601.)