People v. Reveles CA1/1 ( 2022 )

Filed 8/29/22 P. v. Reveles CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A160620
v.
JOSHUA REVELES, (San Mateo County
Super. Ct. No. 19SF015667A)
Defendant and Appellant.
Appellant Joshua Reveles was convicted of three sex offenses
committed against a minor and was sentenced to an aggregate term of 10
years in state prison. On appeal, he claims the trial court erred in admitting
evidence of his prior sexual offenses under Evidence Code sections 1108 and
352. He also asserts that the court used an incorrect sentencing triad with
respect to one count and improperly relied on his criminal history to impose
the upper term on that count. In supplemental briefing, he maintains that
newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567) requires
his sentence be modified. We disagree with appellant’s contentions and
affirm.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Amended Information
In March 2020, an amended information was filed charging appellant
with contacting a minor with the intent to commit oral copulation (Pen. Code,
§§ 288.3, subd. (a), 287; count 1),1 contacting a minor with the intent to
obtain child pornography (§§ 288.3, subd. (a), 311.11; count 2), attempting to
arrange a meeting with a minor for lewd purposes (§§ 288.4, subd. (a)(2), 664;
count 3), and annoying or molesting a child (§ 647.6, subd. (a)(1); count 4).
The information alleged appellant had suffered six prior convictions between
2013 and 2015 for contacting a minor with the intent to commit a sexual
offense (§ 288.3, subd. (a)), and that he had a total of nine prior registrable
sex convictions.
B. The Prosecution’s Case
In November 2019, 17-year-old A.Z. was a high school senior who
worked at a restaurant in downtown Redwood City. At around 6:00 p.m. on
November 3, 2019, she was seated outside near the restaurant waiting for
her friend and coworker S.G. to get off work when she was approached by
then 30-year-old appellant who was accompanied by a woman named
Margarita. Appellant offered to buy A.Z. a drink, which she declined. A
short while later, Margarita approached again and asked if she was okay or
needed anything. A.Z. said she was fine and that she was waiting for her
friend. She chatted with appellant, Margarita and a man named Alan for
about 30 minutes. In response to questions from appellant and Alan, A.Z.
1All undesignated statutory references are to the Penal Code except as
otherwise indicated.
2
said she was a 17-year-old high school senior. Appellant said, “nice,” and
that he was dating Margarita, who by then had left.
A.Z. went with appellant and Alan to sit outside a nearby bar, where
the server asked for her identification. She did not order any alcoholic
drinks. Although she had a boyfriend, she gave appellant and Alan her
phone number at their request. She texted S.G. that she was with “two guys
that were really cool.”
Late that night, appellant texted A.Z., asking if she got home alright.
She was falling asleep and did not answer. Over the next few days, he began
calling and asking her to meet him, but she declined. He also texted her with
sexual messages, telling her that he wanted to meet her at a hotel, have sex
with her, and “eat [her] out.” He said he wanted to be friends with benefits,
meaning to “be friends and like have sex but just be friends.” She told him
she was not interested.
Appellant continued to text A.Z., sending photographs of himself,
including two “dick pics.” She also received texts from appellant’s phone
number, purportedly sent by Margarita, in which the woman encouraged her
to go to a hotel with appellant and have sex with him. Two days later, A.Z.
received more texts from appellant saying he wanted to have sex with her at
a hotel. He “constantly” texted her “throughout the day nonstop.” She would
eventually respond by stating, “ ‘I can’t, I’m under age.”
Appellant also offered A.Z. a modeling job in Las Vegas to model clothes
and do pornography at the same time. He asked her to send him nude photos
of herself. She said she was not interested. She also received more texts
from Margarita from the same phone number encouraging her to take the
modeling job and go to a hotel to have sex with appellant. A.Z. did not
respond.
3
On the night of November 23, 2019, A.Z. was working at the
restaurant. She and S.G. both got off work at 10 p.m. and went to another
downtown restaurant to have a bite to eat. They ran into appellant and Alan,
who invited them to sit down and have a drink. A.Z. said yes because she
was having a bad day and wanted to relax. She did not warn S.G. that
appellant had been sending her inappropriate texts, including photos of a
penis.
Appellant poured both A.Z. and S.G. drinks from a soda bottle into shot
glasses. The liquid tasted like alcohol. A.Z. drank six shots and S.G. drank
three or four. At around 11:00 p.m., S.G. got up and left abruptly when she
saw her father nearby because she did not want him to see her drinking
alcohol. By then, A.Z. was drunk and dizzy and may have fallen asleep. She
remembered Alan holding her up and then appellant lifting her and putting
her in a car. When she woke up inside the car, her shirt and bra were off and
appellant was on top of her with his hands on her breasts. When she tried to
push him off, he said “calm down” and she blacked out again.
When A.Z. did not come home from work that night, her parents went
to the downtown area to try to find her. Her father saw a man pick up a
woman and carry her over his shoulder. He thought the woman was A.Z.
because he had been tracking her cell phone with an application. The tracker
indicated that A.Z. was moving closer to their home, so he called A.Z.’s older
brother, J.Z., and told him to go outside their residence.
J.Z. went out and saw a car parked in the Whole Foods parking lot,
which was directly across the street from their home. He saw appellant
carrying a woman. Appellant put the woman on the ground and drove away.
J.Z. went to the woman and saw that it was A.Z. She was unconscious.
Appellant drove around the block and came back to the parking lot. He got
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out and asked J.Z. if he knew the woman. J.Z. told him that she was his
sister. Appellant said he had found her outside of a Chipotle restaurant and
decided to bring her home.
A.Z.’s parents drove back to their home and saw J.Z. speaking to a man
in the Whole Foods parking lot. Her father parked the car and he and his
wife got out and went to their daughter who was lying on the ground,
unconscious. Her mother yelled at appellant and asked if he knew how old
A.Z. was. He replied that he was just a friend and that he worked at Chipotle
and was just taking her home. A.Z.’s mother believed him and they shook
hands.
A.Z.’s father and her brother picked A.Z. up to carry her home. She
was wearing a gray, loose fitting sweater that did not appear to belong to her.
Her father did not talk to the man who was with her, but he seemed like the
same man that he had seen earlier carrying the woman. They took A.Z. to
their apartment and called first responders.
When A.Z. woke up she was in her home with paramedics treating her.
She spent most of the night at the hospital. The next day, she told S.G. what
had happened. She also told her parents that she had been drinking with
some friends that worked at Chipotle. She did not tell her parents about
appellant’s texts or photos.
A.Z. later received more texts from appellant’s phone from Margarita,
telling her she had wanted what appellant did to her and it was not a bad
thing that happened. Margarita said that she had arrived after A.Z. passed
out and that appellant had kissed A.Z.’s neck and “boobs” and she had
apparently liked it. The texts stopped when A.Z. replied that what appellant
did was not consensual—that she was passed out and he took advantage of
her.
5
Over the next couple of days, appellant asked his coworker, 17-year-old
C.A., to reach out to A.Z. for him. Appellant knew that A.Z. and C.A. knew
each other and attended the same high school. Appellant previously had
asked C.A. to contact A.Z. while the two were at school.
After November 23, A.Z. received text messages from appellant asking
her to move in with him. She told him she was underage and lived with her
parents. He said she should get emancipated and move in with him. At one
point, he invited her to go to a hotel to drink with him again. He also sent
her more photos of a penis, one of which she received while she was at school.
At some point she told him she would call the police if he did not leave her
alone.
Around November 30, 2019, appellant walked into A.Z.’s workplace
holding the apron she had been wearing on November 23. The apron was
rolled up. Inside its pocket was a box containing a necklace that A.Z. had
never seen before.
A couple of weeks after November 23, A.Z. told her mother about what
had happened because she was scared and did not know what to do. Two
days later, her mother helped her contact the police. By then, A.Z. had
deleted all the texts from appellant and Margarita because she wanted to
forget. But she did have a screenshot of one set of messages. The screenshot
was introduced as evidence during the trial.
Appellant was arrested at work on December 18, 2019. Sergeant Mark
Alifano interviewed appellant. Appellant denied knowing that A.Z. was 17
years old. A video of the interview was played for the jury. Sergeant Alifano
also interviewed A.Z. twice. During the interviews, she did not mention that
she had gone to a bar with appellant the first time she met him.
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C. Defense Case
Appellant introduced a photograph and rested his case.
D. Evidence of Appellant’s Prior Offenses
Prior to trial, the trial court granted the prosecution’s motion pursuant
to Evidence Code sections 1101, subdivision (b) and 1108 to introduce
evidence of several of appellant’s prior sexual offenses involving underage
teenage girls.2 The evidence introduced at trial is described below.
1. A.J.
In July 2013, appellant was convicted of several counts of violating
section 288.3, subdivision (a). One of the victims, A.J., testified that she was
14 years old when she first met then 23-year-old appellant at her uncle’s
birthday party in September 2012. Appellant told her that his friend
“Danielle” could give her a modeling job. Excited about the modeling
opportunity, A.J. gave appellant her cellphone number. Ten minutes later,
while she was still at the party, she received a text message from “Danielle”
with information about a modeling job. “Danielle” suggested A.J. discuss the
opportunity with appellant. A.J. expressed reluctance because appellant was
likely “over 21,” but “Danielle” assured her it was okay. Later, A.J. received
a text message from a different number claiming to belong to appellant.
Appellant told A.J. that she “looked pretty” and that they “should hang out.”
“Danielle” continued messaging A.J. for weeks and asked multiple
times for “pictures with little to no clothing, full body nude, and close-ups” of
2 The parties stipulated that appellant previously had been convicted of
several sex-related crimes between 2011 and 2014, including: contacting a
minor with the intent to commit a sex crime or other felony involving a minor
(§ 288.3, subd. (a)), arranging a meeting with a minor for lewd purposes
(§ 288.4, subd. (a)(1), and unlawful sexual intercourse with a minor (§ 261.5,
subd. (c)).
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A.J.’s “vagina.” “Danielle” asked her to “send alot of different poses naked”
and insisted she “hang out” with appellant and “have sex with him.” A.J. told
“Danielle” appellant “creeped [her] out” “[b]ecause of [their] age difference.”
“Danielle” encouraged A.J. to “go with” appellant and he would take her
anywhere and buy her everything she wanted. At some point, A.J. told
“Danielle” she believed there was never a real modeling job and that
“Danielle” was actually appellant “trying to get at young ass girls.” A.J.
stopped messaging appellant and contacted the police. By then, she had
deleted some of the messages from appellant because she did not want her
mother to see them.
2. S.S
S.S. testified that she was 14 years old in 2012 when she first met
appellant at her best friend’s house. Appellant and her friend, who also was
14 years old, were cousins. In November 2012, S.S. and her friend were at
their high school’s homecoming football game when they ran into appellant.
Appellant asked the girls for their phone numbers and said “Danielle”—an
agent for a modeling company—would text them with more information
about potential modeling opportunities.
Shortly after, S.S. received a text from “Danielle.” S.S. expressed
interest in a modeling job and “Danielle” asked her to send her nude photos
so that she could assess S.S.’s body shape and figure. S.S. declined.
“Danielle” had told her that appellant was a “very great guy; that any girl
would be lucky to be with him and that [S.S.] should be that girl.” Later,
“Danielle” sent S.S. a photograph of an erect penis and said it was from
appellant. “Danielle” stated appellant was her cousin and that he had asked
“Danielle” to send the photograph to S.S.
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At some point, S.S. received a text from the same number saying,
“ ‘Hey, it’s Josh.’ ” He then told her he was “transfer[ring] the phone number
back to Danielle.” S.S. found this odd and believed that “it was one person
behind that phone number.” Later, she received a text from the same
number saying, “Hey my names Anthony. I kno its out of knowhere but a girl
gave me your number and said you might be interested?” S.S. did not know
“Anthony” and asked, “Interested in what[?]” “Anthony” said, “In me. Can I
send you a pic?” S.S. said she had to go, and “Anthony” said, “Ok im gana
transfer her number back.” S.S. then received a text from “Danielle” saying,
“Hey its danielle sweety.” “Danielle” told S.S. she still wanted to hire her and
asked for nude photographs. S.S. responded she was “only 14” and
threatened to contact the police if “Danielle” did not leave her alone.
S.S. showed the texts to her mother, C.R. C.R. messaged appellant
threatening to contact the police if he texted again. About one and one-half
months later, S.S. received a text message from the same number, saying,
“Merry Christmas babe … wish I was there with you.” “Panick[ed],” S.S.
showed her mother. When C.R. texted appellant pretending to be a 13-year-
old girl named “Nicole,” she was offered a job and asked if she was a “virgin.”
She was also told she would be really “lucky to have Joshua” and that she
“should get with him.” C.R. contacted the police. By then, S.S. had deleted
many of the earlier messages from appellant because she had been afraid of
getting in trouble if her mother discovered them.
3. B.S.
In November 2014, B.S. was a 17-year-old high school senior when she
first met appellant at the restaurant where she worked. Appellant was
sitting in the bar area when he offered her a high-paying modeling job. She
told appellant she was 17 years old and he said that was fine. She expressed
9
interest in the opportunity, and appellant gave her a phone number and told
her to text his boss “Danielle.”
B.S. texted “Danielle” that day and asked about the modeling job.
Danielle asked her for nude photos and said the job required that she have
sex with appellant. B.S. felt “uncomfortable” and said she was no longer
interested in the job. She asked Danielle to stop messaging her, but Danielle
insisted she take the job. She also received texts from another number
saying it was appellant.
A couple of days later, appellant returned to the restaurant while B.S.
was working. She asked appellant to stop texting her but he did not stop.
She contacted the police, and at their suggestion, she initiated a pretext
conversation with appellant. During that text conversation, she asked
appellant to meet her at the restaurant after work and said she would have
sex with him. When he arrived, B.S. called the police. He was arrested and
interviewed by police officers.
4. A.O.
In October 2014, A.O. was 13 years old when she first met appellant.
A.O. and her younger cousin were standing outside the theater waiting for
friends when appellant approached them and asked if they wanted modeling
jobs. Appellant said his name was “Anthony” and asked the girls for their
ages. A.O. told appellant she was 13 years old and he said that was fine.
A.O. did not own a cell phone so she gave appellant her mother’s phone
number.
Later, A.O. received a text message from “Anthony.” She inquired
further about the modeling job and “Anthony” asked her for photos of her
“breasts” and “body.” He also asked her to meet him at a hotel near her
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house. A.O. had fallen asleep and did not respond to this last text, which was
sent around 1:00 a.m. Instead, her mother C.E. saw the text message first.
C.E. read the texts between “Anthony” and her daughter and found
them inappropriate. Pretending to be A.O., C.E. said she was interested and
appellant asked to meet right away. She agreed to meet, and “Anthony” sent
her the address to a nearby hotel. C.E. left her house and as she approached
the location, he told her he would open the door for her. From across the
street, she saw “Anthony” open the door to a hotel and step outside. She then
walked back home and called the police. At trial, she identified appellant as
the person she saw exit the hotel to meet her. However, previously she had
been unable to identify him in a photo line-up.
At some point, A.O.’s 15-year-old sister was using their mother’s
cellphone when she saw a text message addressed to A.O. about a modeling
opportunity. She was also interested in modeling, so she responded. When
she stated she was 15 years old, she was told an exception could be made if
she had sex with the boss. She immediately gave the cellphone to her
mother, C.E.
E. Verdict and Sentencing
On June 25, 2020, the jurors announced a deadlock on count 3. The
jury found appellant guilty as charged in counts 1, 2, and 4. The trial court
declared a mistrial on count 3, which was dismissed on the prosecutor’s
motion. The court found the prior conviction allegations true.
On July 24, 2020, the trial court denied probation and sentenced
appellant to 10 years in state prison, comprised of (1) the upper term of three
years on count 2, plus a five-year prior conviction enhancement, and (2) one-
third the midterm, or four months, on count 1, plus 20 months for a prior
11
conviction enhancement. Sentencing on count 4 was stayed. This appeal
followed.
II.
DISCUSSION
A. Admission of Evidence of Prior Offenses
1. The Parties’ Contentions
Appellant does not challenge admission of evidence of his prior offenses
under Evidence Code, section 1101, subdivision (b).3 However, he claims the
trial court abused its discretion and committed prejudicial error in admitting
evidence of his prior offenses under Evidence Code section 1108. He first
argues that the evidence was not admissible under the later section because
violations of sections 288.3 and 288.4 are not designated as “sexual offenses”
within the meaning of Evidence Code section 1108, subdivision (d)(1). He
also asserts that the evidence was unduly prejudicial under Evidence Code
section 352, and that the admission of the evidence violated his due process
rights.
The Attorney General counters that evidence of appellant’s prior sexual
offenses was properly admitted under Evidence Code section 1108 because
the current and prior offenses involved similar proscribed sexual conduct.
The Attorney General further asserts that the evidence was not unduly
3 Evidence Code section 1101, subdivision (b) provides: “Nothing in this
section prohibits the admission of evidence that a person committed a crime,
civil wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably and in good
faith believe that the victim consented) other than his or her disposition to
commit such an act.”
12
prejudicial under Evidence Code section 352, and that there was no due
process violation.
2. Applicable Law
“Evidence Code section 1101, subdivision (a) sets forth the ‘ “strongly
entrenched” ’ rule that propensity evidence is not admissible to prove a
defendant’s conduct on a specific occasion.” (People v. Jackson (2016) 1
Cal.5th 269, 299.) But when a defendant is charged with a sexual offense,
Evidence Code section 1108 “carves out an exception” to Evidence Code
section 1101’s prohibition against propensity evidence. (People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 823.) Evidence Code section 1108,
subdivision (a) states that when a “defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses
is not made inadmissible by Section 1101, if the evidence is not inadmissible
pursuant to Section 352.” (Ibid.) Under Evidence Code section 352, a court
has “the discretion to ‘exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.’ ” (People v. Nguyen (2010)
184 Cal.App.4th 1096, 1116 (Nguyen).)
A trial court’s ruling on the admissibility of evidence under Evidence
Code sections 1108 and 352 “is reviewed for abuse of discretion and will ‘ “not
be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.” ’ ” (Nguyen, supra, 184 Cal.App.4th at
p. 1116; accord, People v. Story (2009) 45 Cal.4th 1282, 1295 (Story).)
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3. Analysis
a. Evidence Code Section 1108
Appellant’s first argument requires us to construe the term “sexual
offense” under Evidence Code section 1108. “The first principle of statutory
interpretation requires that we turn initially to the words of the statute to
ascertain the Legislature’s intent. ‘[I]f “ ‘the statutory language is clear and
unambiguous, there is no need for construction and [reviewing] courts should
not indulge in it. [Citation.] The plain language of the statute establishes
what was intended by the Legislature.’ ” [Citation.]’ ” (People v. Palacios
(2007) 41 Cal.4th 720, 728.)
As the trial court correctly observed, Evidence Code section 1108
defines sexual offenses by the conduct committed, not the conviction suffered
for such conduct. Specifically, Evidence Code section 1108, subdivision (d)(1)
defines “sexual offense” as including, “[a]ny conduct proscribed by subdivision
(b) or (c) of Section 236.1, Section 243.4, 261, 261.5, 262, 264.1, 266c, 269,
286, 287, 288, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section
311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of, or former
Section 288a of, the Penal Code.” (Evid. Code § 1108, subd. (d)(1)(A), italics
added.) As is apparent, while sections 288.3 and 288.4 are not listed in this
subdivision, sections 287 (oral copulation) and 311.11 (child pornography) are
included.
In ruling that appellant’s prior sexual offenses were admissible, the
trial court relied on Story, supra. As the trial court explained, in Story
“review was granted to decide whether a defendant tried for first-degree
felony murder with rape, the underlying felony is accused of a sexual offense
under the definition in section 1108, and the Court said ‘Because a murder
during the course of a rape involves conduct or at least an attempt to engage
14
in conduct prescribed by Penal Code section 261, we conclude that a
defendant accused of such a murder is accused of a sexual offense within the
meaning of 1108.’ ” (See Story, supra, 45 Cal.4th 1282, 1285.)
The trial court continued: “And I think here the 288.3 and the 288.4
charges, it’s just identical logic and reasoning to Story; that despite the fact
they are not specifically named in 1108, just like 187 isn’t, a component of
those here, both of them have specific sexual offenses as the target offenses
which are included within section 1108. [¶] So moving on in Story, the same
– a very similar argument was made by the defense in Story and relied on by
the Court of Appeals, who ended up being reversed, that the –because the
accused was accused of murder and that is not found in any of the
enumerated Penal Code sections, nor does it include as a necessary element
nonconsensual sexual content. That was the reasoning of the Court of Appeal
in finding it didn’t qualify under 1108 and that was rejected. What the Court
– the Supreme Court found there in Story was that this type of first-degree
murder unquestionably involves conduct prescribed by Penal Code section
261; likewise that 288.3 and 288.4 here involve sexual conduct that is covered
within section 1108.”
The trial court’s reasoning here was correct. We note that the Story
court found support in People v. Pierce (2002) 104 Cal.App.4th 893. (See
Story at pp. 1293-1294.) In Pierce, the appellate court concluded that the
crime of assault with intent to commit rape (§ 220) was a sexual offense
within the meaning of Evidence Code section 1108, even prior to the
amendment that added that crime to the list of included sexual offenses
(Evid. Code, § 1108, subd. (d)(1)(B).). The appellate court concluded that the
amendment “only clarified the preexisting statute by explicitly including
offenses that previously fell within section 1108.” (Id. at p. 899.) The court
15
reasoned that prior to this amendment, Evidence Code section 1108 already
included attempted rape by correlating former subdivision (d)(1)(A) with
former subdivision (d)(1)(E) (now (F)), which extends the definition of “sexual
offense” to include an attempt or conspiracy to commit the proscribed
conduct. The court further reasoned that assault with intent to rape is an
aggravated form of attempted rape. (Id. at p. 898.)
Similarly, in People v. Walker (2006) 139 Cal.App.4th 782 (Walker), the
appellate court stated: “Although murder, standing alone [citation], is not one
of the offenses enumerated in section 1108, subdivision (d)(1), there can be no
question certain murder charges would qualify as ‘sexual offenses’ within the
meaning of that provision—for example, a charge of first degree murder
alleging special circumstances under Penal Code section 190.2, subdivision
(a)(17)(C), (D), (E), (F) and (K) (murder committed while the defendant was
engaged in, or accomplice in, commission of, attempted commission of, or
immediate flight after committing, or attempting to commit rape, sodomy or
other specified sexual crimes). In such a case the defendant is accused of a
crime that involves conduct proscribed by section 1108, subdivision (d)(1)(A).
[Citation.].” (Id., Walker, supra, 139 Cal.App.4th at p. 798.)
We note that although section 288.3 is not enumerated under Evidence
Code section 1108, subdivision (d), section 288.3 is not a stand-alone offense.
Rather, it is expressly tied to a list of target offenses. Section 288.3,
subdivision (a) provides: “Every person who contacts or communicates with a
minor, or attempts to contact or communicate with a minor, who knows or
reasonably should know that the person is a minor, with intent to commit an
offense specified in Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2,
289, 311.1, 311.2, 311.4 or 311.11, or former Section 288a, involving the
minor shall be punished by imprisonment in the state prison for the term
16
prescribed for an attempt to commit the intended offense.” Appellant’s prior
offenses, as well as his current crimes of contacting a minor with the intent to
commit oral copulation (section 287) and contacting a minor with the intent
to obtain child pornography (section 311.11), fall squarely within Evidence
Code section 1108’s definition of “sexual offense” because the target crimes
are specifically enumerated under that statute. (Evid. Code, § 1108, subd.
(d)(1)(A).)4
It also makes sense that the Legislature would not specifically
enumerate section 288.3. As the prosecutor noted below: “The argument that
was made about the 1108 motion yesterday that because 288.3 isn’t
enumerated it should have been excluded. Well, the problem would have
been if they had included 288.3 it could have back-doored in other target
offenses not related, such as 207 and 209 of the Penal Code, which are both
options for target offenses under 288.3.”
In sum, we concur with the trial court that, under the reason of Story
and the cases cited therein, appellant’s section 288.3 offenses (counts 1 and 2)
fall within section 1108.
b. Evidence Code Section 352
Appellant further contends that the trial court erred in admitting
evidence of his prior sexual conduct because the prejudice stemming from
admission of the evidence substantially outweighed its minimal probative
value under Evidence Code section 352.
Evidence Code section 352 vests trial courts with broad discretion to
weigh the prejudicial effect of proffered evidence against its probative value.
4Appellant acknowledges that his conviction under section 647.6,
subdivision (a)(1) (count 4) for annoying or molesting a child is a listed sexual
offense under section 1108.
17
(People v. Williams (1997) 16 Cal.4th 153, 194.) The trial court has discretion
to exclude relevant evidence only “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
When weighing the prejudice of Evidence Code section 1108 evidence
against its probative value under Evidence Code section 352, the primary
factors to be considered include: “(1) whether the propensity evidence has
probative value, e.g., whether the uncharged conduct is similar enough to the
charged behavior to tend to show defendant did in fact commit the charged
offense; (2) whether the propensity evidence is stronger and more
inflammatory than evidence of the defendant’s charged acts; (3) whether the
uncharged conduct is remote or stale; (4) whether the propensity evidence is
likely to confuse or distract the jurors from their main inquiry, e.g., whether
the jury might be tempted to punish the defendant for his uncharged,
unpunished conduct; and (5) whether admission of the propensity evidence
will require an undue consumption of time.” (Nguyen, supra, 184
Cal.App.4th at p. 1117.) The trial court balances the probative value
established by the first factor against prejudice as measured by the second
through fifth factors. (Ibid.) We will not disturb the trial court’s ruling
under section 352 “ ‘except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice. [Citations.] ’ ” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124-1125.)
Appellant asserts the evidence of his prior offenses was cumulative,
had minimal probative value, and was substantially outweighed by its
prejudicial effect. Specifically, he argues that evidence of his prior offenses
18
was not necessary to prove that he knew A.Z. was only 17. He also complains
that the evidence of the prior offenses was extensive, and contends that some
of the evidence was more inflammatory than the charged offenses because the
complaining witnesses were younger, with two being 14 and one being 13. He
does, however, essentially concede that the trial court had discretion to admit
the evidence pertaining to the offense committed against 17-year-old B.S.
because that was the most similar prior offense.
We disagree that the challenged evidence was unnecessary to the
prosecution’s task in this case. While appellant asserts on appeal that there
was no dispute he knew A.Z. was underage, at trial he did assert the defense
of mistake of age. Moreover, the prosecutor was required to prove each and
every element of the charged offenses. As the Attorney General notes, in
both the prior and current offenses, appellant sent sex-related
communications to a female who made clear that she was underage, while
assuring his victims that it was permissible for them to communicate with
him. His communications in the prior incidents were strikingly similar to his
communications in the present offenses. For example, in the prior offenses
he also posed as a female, offered the female minors modeling jobs, and
stated the jobs required they send him nude photographs and have sex with
him. The prior offense evidence was clearly relevant to establishing the
elements of the present offenses.
And while the prior offense evidence was extensive, it was not overly
cumulative. The prior victim witnesses testified to different offenses and
their testimony did not overlap. Other witnesses, such as the mother of one
of the victims, substantiated the victims’ testimony without excessive
repetition. Moreover, the detailed testimony was relevant to demonstrating
appellant’s modus operandi and to establishing his criminal intent. As the
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Supreme Court has often explained, “the recurrence of a similar result tends
to negate an innocent mental state and tends to establish the presence of the
normal criminal intent. [Citations.]” (People v. Jones (2011) 51 Cal.4th 346,
371.)
Finally, we disagree with appellant’s claim that the prior offenses were
more inflammatory than the current offenses. While the other victims were
younger than A.Z., appellant supplied A.Z. with alcohol until she became
unconscious and thereafter groped her. None of the prior victims testified
that they were inappropriately touched by appellant or that he had given
them alcohol. And, as the Attorney General observes, the age gap between
A.Z. and appellant was greater than in the prior offenses. In sum, we
conclude the trial court’s evidentiary rulings did not constitute an abuse of
discretion.
c. Due Process
Because we find no abuse of discretion under Evidence Code section
352, we also reject appellant’s contention that the admission of the prior
sexual offenses violated his rights to a fair trial and due process. 5 (See People
v. Falsetta (1999) 21 Cal.4th 903, 917 [“In summary, we think the trial court’s
discretion to exclude propensity evidence under [Evidence Code] section 352
saves [Evidence Code] section 1108 from defendant’s due process challenge”].)
5We also note that the jury was instructed with CALCRIM Nos. 303,
375, and 1191A on the permissible use of evidence of the prior acts, which
cautioned the jurors that if they found by a preponderance of the evidence
that appellant committed a prior sexual offense, that was not sufficient by
itself to prove beyond a reasonable doubt that he had committed the charged
offenses, and that the prosecutor still had to prove each element of each
charge beyond a reasonable doubt. We presume that limiting instructions
are followed by the jury. (People v. Waidla (2000) 22 Cal.4th 690, 725.
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Because we find no error, we need not address the parties’ contentions as to
whether any error was prejudicial.
B. Sentencing on Count 2
Appellant asserts that the trial court used an incorrect sentencing triad
with respect to count 2, and improperly relied on his criminal history to
impose an upper term on that count.
1. Additional Background
As noted above, appellant was convicted in count 2 of contacting a
minor with the intent to obtain child pornography (§§ 288.3, subd. (a), 311.11,
subd. (b).) The parties agreed in their sentencing briefs that the correct
sentencing triad for count 2 was one, two, or three years. The trial court
imposed the aggravated base term of three years plus five years on the
section 288.3, subdivision (c) enhancement.6 Appellant did not object to his
sentence.
2. Applicable Law
Section 288.3, subdivision (a) provides, in relevant part: “Every person
who contacts or communicates with a minor, or attempts to contact or
communicate with a minor, who knows or reasonably should know that the
person is a minor, with intent to commit an offense specified in Section …
311.11 … shall be punished by imprisonment in the state prison for the term
prescribed for an attempt to commit the intended offense.” (Italics added.)
Section 311.11, subdivision (a) provides, in relevant part: “Every person
who knowingly possesses or controls any matter, representation of
information, data, or image … the production of which involves the use of a
6 Section 288.3, subdivision (c) provides: “A person convicted of a
violation of subdivision (a) who has previously been convicted of a violation of
subdivision (a) shall be punished by an additional and consecutive term of
imprisonment in the state prison for five years.”
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person under 18 years of age … is guilty of a felony and shall be punished by
imprisonment in the state prison, or a county jail for up to one year, or by a
fine not exceeding two thousand five hundred dollars ($2,500), or by both the
fine and imprisonment.” Section 18 provides, in part: “Except in cases where
a different punishment is prescribed by any law of this state, every offense
declared to be a felony is punishable by imprisonment for 16 months, or two
or three years in the state prison . . . .”
Section 311.11, subdivision (b) provides enhanced punishment for a
defendant “who has been previously convicted of [(1)] a violation of this
section, [(2)] an offense requiring registration under the Sex Offender
Registration Act, or [(3)] an attempt to commit any of the above-mentioned
offenses.” In such cases, a defendant “shall be punished by imprisonment in
the state prison for two, four, or six years.” With exception not applicable
here, section 664 (b) provides that the punishment for attempt is “one-half
the term of imprisonment prescribed upon a conviction of the offense
attempted.”
3. Analysis
The Attorney General argues that appellant forfeited his claim of
sentencing error by failing to object below. Even if the Attorney General is
correct, we will address appellant’s assertions on the merits to avoid any
claim of ineffective assistance of counsel.
Appellant maintains that the correct sentencing triad is that which is
specified under sections 311.11, subdivision (a) (and 18) because he was not
convicted of violating section 311.11 in the prior offenses, rather, he was
convicted of violating section 288.3, subdivision (a). We are not persuaded.
As is apparent, section 311.11, subdivision (b) is not limited to persons
who have previously been convicted of a violation of section 311.11. The
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subdivision also applies to individuals who have been convicted of an offense
that requires sex offender registration. Here, it is undisputed that appellant
had previously committed offenses that required him to register as a sex
offender. Accordingly, the trial court used the correct sentencing triad when
it sentenced appellant.
4. Dual Use of Facts
Appellant contends that the trial court abused its discretion by using
his prior convictions to increase his sentencing in multiple ways, in violation
of the statutory prohibition on dual use of facts. We disagree.
At sentencing, the trial court acknowledged that its sentencing
decisions were based primarily on appellant’s prior convictions. The court
stated: “My reasons for the upper term on Count 2, pursuant to rules of court
4.420 and 4.421, are the defendant’s priors. And I want to note there, this is
only to the extent they exceed the priors necessary to impose the five-year
enhancements on Counts 1 and 2. I recognize under 4.420(c) that applied
enhancements cannot be a reason for imposing the upper term, but this is a
unique situation where the defendant has multiple prior convictions and only
two are needed to apply the five-year enhancements, one on each count. So to
the extent his priors exceed those two, I find them applicable reasons for
imposing the upper term.”
Appellant does not contest that he had multiple prior convictions. In
fact, his record includes 10 prior felony sex offense convictions. While it
constitutes an improper dual use to impose a prior prison term enhancement
and to impose the upper term based on the same conviction (People v.
McFearson (2008) 168 Cal.App.4th 388, 390), the rule does not apply when
the prior prison term is based on a multi-offense commitment and splitting
the offenses can justify each sentencing decision (see People v. Brandon
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(1995) 32 Cal.App.4th 1033, 1054 [no improper dual use in imposing a five-
year enhancement under section 667, subdivision (a) and a prior prison term
enhancement when both are based on a single imprisonment for two offenses,
each of which could justify each enhancement].) Thus, when a single prior
prison term is based on a multi-offense commitment, each offense
encompassed by that commitment is not thereby prohibited from being used
again in sentencing, when a single offense alone could justify the prior prison
term enhancement. (Ibid.) Here, appellant suffered not one, but two prior
prison terms based on a total of 10 prior sex offenses. Any two of those
convictions would have been sufficient to support the prior offense
enhancements, leaving the other convictions to be used to impose the upper
term with no improper dual use. The trial court did not err in selecting the
upper term.
C. Senate Bill No. 567
In supplemental briefing, appellant maintains that newly enacted
Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567) requires his sentence on
count 2 to be lowered to the midterm. We disagree.
From March 30, 2007, to January 1, 2022, California’s determinate
sentencing law specified that “[w]hen a judgment of imprisonment [wa]s to be
imposed and the statute specifie[d] three possible terms, the choice of the
appropriate term ... rest[ed] within the sound discretion of the court.” (§
1170, former subd. (b).)
Effective January 1, 2022, Senate Bill 567 amended section 1170,
subdivision (b). (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2)
now provides, “[t]he court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle term, and the
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facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) As an exception to
the general rule, a trial court is permitted to rely upon a certified record of
conviction to determine prior criminality for purposes of sentencing without
submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)
As a threshold matter, the parties agree, as do we, Senate Bill 567 is
retroactive to cases not yet final on appeal pursuant to In re Estrada (1965)
63 Cal.2d 740 (see People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039
[remanding for resentencing under another ameliorative amendment to
section 1170 by Senate Bill 567]) and appellant’s sentence is not yet final on
appeal.
Appellant asserts that the trial court’s imposition of the upper term
was improper because it was not based on prior convictions proven with a
certified record of conviction. Not so. The record shows that the trial court
was provided with a certified record of appellant’s prior convictions that was
submitted by the California Department of Corrections and Rehabilitation.
As our Supreme Court has explained, “ ‘[o]fficial government records clearly
describing a prior conviction presumptively establish that the conviction in
fact occurred . . . . Some evidence must rebut this presumption before the
authenticity, accuracy, or sufficiency of the prior conviction records can be
called into question.’ ” (People v. Delgado (2008) 43 Cal.4th 1059, 1066; see
People v. Yim (2007) 152 Cal.App.4th 366, 371, [court records pertaining to a
prior conviction were sufficient to “demonstrate, as a matter of law, that [the
defendant] committed new offenses while on parole,” and “[n]o trial court or
jury could rationally find otherwise.”].) Appellant does not suggest how he
could have possibly contested the fact of his prior convictions and prison
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terms. Moreover, it is clear that the trial court’s decision to impose the upper
term on Count 2 was primarily based on appellant’s criminal history, and not
on other factors. In sum, the court’s sentencing decisions fully comported
with the new law.
III.
DISPOSITION
The judgment is affirmed.
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WISS, J.
WE CONCUR:
MARGULIES, ACTING P.J.
BANKE, J.
A160620
Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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