People v. Garcia CA4/3

INTRODUCTION

A jury convicted Humberto Garcia, as charged, of two counts of committing a lewd and lascivious act upon a child under 14 years of age in violation of Penal Code section 288, subdivision (a) (section 288(a)). The jury found to be true allegations that Garcia took advantage of a position of trust and confidence to commit the crimes. The trial court sentenced Garcia to the low term of three years on count 1 and a concurrent term of three years on count 2. Garcia challenges his conviction on the ground the trial court erred by receiving into evidence five pornographic images and the names of pornography websites found on his cell phone. He argues that evidence was inadmissible because it was of uncharged conduct, was irrelevant, and was offered to attack his character. He also argues that evidence, if relevant, should have been excluded under Evidence Code section 352. We conclude (1) the evidence of the pornographic images and pornography website names was relevant to prove the intent required for a conviction under section 288(a) and (2) the trial court did not abuse its discretion in deciding not to exclude that evidence under Evidence Code section 352. Accordingly,…