P. v. Jessee CA4/1

Filed 5/15/13 P. v. Jessee CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061402
Plaintiff and Respondent,
v. (Super. Ct. No. SCD225723)
MARK JESSEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Amalia L.
Meza, Judge. Affirmed.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kimberley Donohue, A. Natasha
Cortina, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Mark Jessee of three counts of a lewd act on a child (Pen. Code,
§ 288, subd. (a); counts 1, 2 and 3) and aggravated sexual assault (Pen. Code,
§§ 269/286; count 4). The trial court sentenced him to an indeterminate term of 15 years
to life on count 4, plus a consecutive determinate 10-year state prison term on counts 1
through 3 (a midterm of 6 years for count 1 and consecutive two-year terms for counts 2
and 3). On appeal, Jessee contends the trial court prejudicially erred by admitting certain
evidence under Evidence Code1 sections 1108 and 1101. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jessee does not challenge the sufficiency of the evidence of his convictions, so we
set out the offenses in a summary fashion for purposes of evaluating his evidentiary error
claims about prior charged and uncharged misconduct. (People v. Miramontes (2010)
189 Cal. App. 4th 1085, 1090 (Miramontes).)
In 2004, Jessee's younger brother, Angelo L., permitted Jessee to live with him
and Angelo's then 10-year-old daughter A. in a two-bedroom home while Angelo's wife
G., a service member, was deployed. A. and Angelo shared one room while Jessee slept
in the other. During the next few months, while Jessee was babysitting A. and they were
alone, Jessee touched her inappropriately, taking her shirt off and touching her breasts.
He also hit and sodomized A. on one occasion, removing her clothes and putting her face
down on his bed to do so, when he became upset after she discovered pornographic
1 All statutory references are to the Evidence Code unless otherwise stated.
2
videos in his room. A. asked him to stop but he did not. Afterwards, Jessee told A. she
could not tell anyone he had touched her in that way.
In 2009, Angelo began counseling, which revealed that when he was six years old
and Jessee was about 11 years old, Jessee had made Angelo orally copulate him. Angelo
reported the sexual abuse by Jessee to G., who had since moved to Maryland after her
return from deployment, and G. questioned A., who denied any abuse by Jessee. About a
month later, however, in late May or early June of 2009, A. finally told her mother about
Jessee's actions. G. informed police in Maryland.
Before trial, the court granted the People's in limine motions to introduce evidence
of Jessee's sexual acts against Angelo, as well as the testimony of Deborah F., who met
Jessee while walking home from school and had a sexual relationship with him when she
was 13 years old. The court permitted introduction of the evidence concerning Angelo,
reasoning the oral copulation acts between Angelo and Jessee were not more
inflammatory than the offenses against A.; the acts were committed against relatives;
while the conduct was not as similar as the incident with A., it did not need to be under
section 1108; and the conduct was not so prejudicial that it should be removed from the
jury's consideration. The court also reasoned that Jessee subsequently had not led a
blameless life, thus lessening any concern about remoteness. As to Jessee's offenses with
F., the court allowed the testimony under section 1108 as well as 1101, subdivision (b)
regarding Jessee's intent, possibly lack of mistake or accident, and knowledge.
Accordingly, at trial, F. testified that when Jessee was 23 years old and she was 13
years old, Jessee led F. to believe they were starting a boyfriend-girlfriend relationship;
3
Jessee would walk her to and from school, and bring her flowers and gifts, but it quickly
turned into kissing and then a sexual relationship. While F. was 13 years old and over the
next two years, Jessee fondled F.'s breasts, engaged in sexual intercourse with F., and
sodomized her with his fingers. F. testified there was force involved in their sex acts in
that she did not feel she had a choice. She also testified Jessee physically hurt her, once
throwing her across a room. Jessee instructed F. to keep their relationship a secret so she
did not tell her parents, but her parents ultimately learned of it and the relationship ended.
After Jessee's acts with F. were reported to police, Jessee pleaded guilty, served five
months in jail, and was put on three years of probation.
The People also introduced Jessee's interview with San Diego Police Detective
Stacee Botsford, during which Jessee admitted the sexual conduct with Angelo and F.,
but denied any wrongdoing with A. As for Angelo, Jessee claimed they were just kids
"fooling around with each other sexually" and that it was a "mutual thing." In that
interview, Jessee said that when Angelo was older, he had wanted to continue that
relationship but that Jessee made it clear it was not going to happen. Jessee told the
detective that Angelo perceived the situation as molestation, was "in a rage" about the
past, had accused Jessee of ruining his life, and had "flooded" his and his girlfriend's
phones with text messages. Jessee said Angelo told him he would not stop until he
"ruin[ed] [Jessee's] life," and he anticipated that Angelo or one of his friends would try to
hurt him because of it.
Defense Evidence
4
Jessee, who was 44 years old at the time of trial, testified in his defense. He
admitted to being a "very self-centered drug addict and alcoholic" before becoming
involved in the church, which caused him to change his behavior. He acknowledged his
relationship with F., but denied having any interest in prepubescent girls then or at
present. Jessee denied sexually or physically assaulting F., but conceded he hurt her
because she was not emotionally ready for that "kind of relationship."
Jessee admitted that when he was 11 and 12 years old, after swimming or going to
the beach and then showering, he and Angelo would touch each other's genitals and
orally copulate each other. He did not recall forcing Angelo, but stated it was his idea
and he admitted responsibility for the situation.
Jessee testified he did not rape A., sodomize her, touch her breasts in a sexual or
any way, or view her in a sexual way. He denied assaulting or punching her.
I. Admission of Charged and Uncharged Misconduct to Prove Propensity under Section
1108
Jessee contends the trial court prejudicially erred by admitting evidence of the
sexual abuse of his brother Angelo, as well as his prior sexual contact with F. Pointing
out his counsel had conceded the evidence fell within the scope of section 1108, Jessee
maintains the evidence was more prejudicial than probative, and should have been
excluded under section 352.
A. Legal Principles
Generally, evidence of a defendant's character is not admissible to prove his
conduct on a specific occasion conformed to his character. (§ 1101, subd. (a).) An
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exception to this rule is set forth in section 1108, subdivision (a), which states: "In a
criminal action in which the 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." (§ 1108,
subd. (a).)
Under section 352, the trial court may "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." (§ 352.) "The weighing process under Evidence Code
section 352 'depends upon the trial court's consideration of the unique facts and issues of
each case, rather than upon the mechanical application of automatic rules.' "
(Miramontes, supra, 189 Cal.App.4th at p. 1097.) When considering whether to exclude
evidence of another sexual offense under section 352, "trial judges must consider such
factors as its nature, relevance, and possible remoteness, the degree of certainty of its
commission and the likelihood of confusing, misleading, or distracting the jurors from
their main inquiry, its similarity to the charged offense, its likely prejudicial impact on
the jurors, the burden on the defendant in defending against the uncharged offense, and
the availability of less prejudicial alternatives to its outright admission, such as admitting
some but not all of the defendant's other sex offenses, or excluding irrelevant though
inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal. 4th
903, 917.) "[T]he probative value of 'other crimes' evidence is increased by the relative
similarity between the charged and uncharged offenses, the close proximity in time of the
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offenses, and the independent sources of evidence (the victims) in each offense . . . ." (Id.
at p. 917.) Further, "the prejudicial impact of the evidence is reduced if the uncharged
offenses resulted in actual convictions and a prison term, ensuring that the jury would not
be tempted to convict the defendant simply to punish him for the other offenses, and that
the jury's attention would not be diverted by having to make a separate determination
whether defendant committed the other offenses." (Ibid.) In evaluating whether to admit
evidence of other sexual offenses, the court should consider " 'whether "[t]he testimony
describing defendant's uncharged acts . . . was no stronger and no more inflammatory
than the testimony concerning the charged offenses." ' " (Miramontes, 189 Cal.App.4th
at p. 1097.)
On appeal, a trial court's ruling under section 1108 is subject to review for abuse
of discretion. (People v. Loy (2011) 52 Cal. 4th 46, 61; People v. Dejourney (2011) 192
Cal. App. 4th 1091, 1104; Miramontes, supra, 189 Cal.App.4th at p. 1098.) We will not
find an abuse of discretion in admitting evidence under section 1108 unless the court's
ruling " ' "falls outside the bounds of reason" ' " and the court has exercised its discretion
in an arbitrary, capricious or patently absurd manner that has resulted in a miscarriage of
justice. (Miramontes, supra, 189 Cal.App.4th at p. 1098; People v. Lewis (2009) 46
Cal. 4th 1255, 1286.)
B. Prior Uncharged Sexual Acts with Angelo
Jessee maintains the evidence of his sexual misconduct with Angelo was
insufficiently probative or unduly prejudicial under section 352. Relying on factors
7
discussed in People v. Harris (1998) 60 Cal. App. 4th 727, he argues that the prior
uncharged acts were at least as inflammatory as those against A. He argues that evidence
of his uncharged acts had a high risk of causing the jury to punish him for them in the
present case; that the prior misconduct, which occurred over 25 years previously in 1979,
was remote; the prior misconduct was too dissimilar to the acts against A. to have any
probative value; and the evidence had no tendency to show Jessee had a propensity for
committing the type of sex crime charged in the present case absent expert testimony,
which was not offered.
Regarding the similarity of the acts, the court in People v. Loy, supra, 52 Cal. 4th
46 explained: " 'In enacting . . . section 1108, the Legislature decided evidence of
uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is
presumed admissible without regard to the limitations of . . . section 1101.' [Citation.]
. . . '[T]he charged and uncharged crimes need not be sufficiently similar that evidence of
the latter would be admissible under . . . section 1101, otherwise . . . section 1108 would
serve no purpose. It is enough the charged and uncharged offenses are sex offenses as
defined in section 1108.' " (Loy, at p. 63, quoting People v. Frazier (2001) 89
Cal. App. 4th 30, 40-41; see also Miramontes, supra, 189 Cal.App.4th at p. 1099.) The
similarity of the acts, however, are relevant to the trial court's exercise of discretion.
(Loy, at p. 63.)
Here, while Jessee's acts against Angelo may not have been sufficiently similar to
his acts against A. to be admissible under section 1101, there are nevertheless some
similarities. The acts were committed against relatives: his brother and niece, and Jessee
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took advantage of the victims at convenient times while they were isolated from others;
Angelo in a bedroom and A. when he was babysitting her and no one was home. Both
victims were young, prepubescent children at the time. Though we acknowledge some
significant differences in the circumstances and acts against Angelo and A., we cannot
say admission of Jessee's acts against Angelo is arbitrary, patently absurd, or otherwise a
manifest abuse of the trial court's discretion.
Nor did the trial court err by concluding the acts against then six-year-old Angelo,
alleged forced oral copulation,2 were no more inflammatory than the forcible sodomy on
A., who was 10 years old at the time the offenses took place. We disagree the facts of
Jessee's actions against Angelo were so inflammatory or prejudicial as to preclude their
admission in this case on the issue of his propensity to commit such acts. None of the
prior acts involved extreme violence or severe injuries as did the defendant's prior
conduct in People v. Harris, supra, 60 Cal. App. 4th 727, on which Jessee relies.
Further, the People spent minimal time addressing Jessee's prior act against
Angelo; it was introduced by two short questions to Angelo without any inflammatory
details beyond the act3 and via Jessee's admissions over the course of approximately
2 The People maintain that the evidence did not show Jessee used force to
accomplish the oral copulation against Angelo, contrasting those acts with the forcible
sodomy of A. Whether or not the acts against Angelo were forced, we nevertheless
would not find them to be more inflammatory than Jessee's act of removing A.'s clothing,
forcing her face down on the bed, and sodomizing her while she pleaded for him to stop.
3 "[Prosecutor:] Sir, when you were a six-year-old boy, did the defendant ever
commit any sexual acts on you? [¶] [Angelo:] Yes. [Prosecutor:] What were they, sir?
[Angelo:] He made me perform oral on him."
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three and a half pages of a 25-page transcription of his interview with Detective Botsford.
Jessee's counsel then expanded on the incident in cross-examination of both Angelo and
his redirect examination of Jessee's pastor, asking Angelo if he discovered the abuse by
Jessee through counseling and asking Jessee's pastor if he believed Jessee was giving
honest answers when he admitted to those acts during his police interview.
As for the passage of time since the acts, there are no specific time limits
establishing when a prior offense is so remote as to be inadmissible (People v. Pierce
(2002) 104 Cal. App. 4th 893, 900), and appellate courts have upheld the admission of
prior offenses committed 20 to 30 years before the offenses at issue. (People v. Spector
(2011) 194 Cal. App. 4th 1335, 1388-1389 [prior gun assaults, including 28-year-old
assault, properly admitted, particularly where similar assaults had recurred over a lengthy
period of time]; People v. Branch (2001) 91 Cal. App. 4th 274, 284 [30-year-old sex
offense properly admitted]; People v. Pierce, at p. 900 [23-year-old rape conviction];
People v. Soto (1998) 64 Cal. App. 4th 966, 977-978, 991-992 [21- to 30-year old crimes];
People v. Waples (2000) 79 Cal. App. 4th 1389, 1393, 1395 [18- to 30-year-old offenses
properly admitted].) That Jessee committed other sex offenses against F. approximately
11 years later when he was 23 years old, adds probative value to the uncharged offenses
against Angelo. (Spector, at p. 1389.)
We agree there was a risk the jury would be tempted to convict Jessee of the
current charges to assure he was punished for the prior uncharged offense. (See People
v. Branch, supra, 91 Cal.App.4th at p. 284; People v. Frazier, supra, 89 Cal.App.4th at
10
p. 42.) But the trial court gave the jury instructions that focused its attention on the
current charges and advised it about the limited way in which it could consider the
evidence of the uncharged assault on Angelo in relation to those charges.4 We conclude
those instructions "counterbalanced" that risk. (Frazier, at p. 42; see also Miramontes,
supra, 189 Cal.App.4th at p. 1103 [instructing jury on limited purpose of evidence of
prior uncharged sex crimes reduced possibility of jury confusion].)
This court has explained that " ' "[t]he 'prejudice' referred to in Evidence Code
section 352 applies to evidence which uniquely tends to evoke an emotional bias against
defendant as an individual and which has very little effect on the issues. In applying
section 352, 'prejudicial' is not synonymous with 'damaging.' " ' " (Miramontes, supra,
189 Cal.App.4th at p. 1098; People v. Dejourney, supra, 192 Cal.App.4th at p. 1105; see
also People v. Karis (1988) 46 Cal. 3d 612, 638.) "The code speaks in terms of undue
prejudice" and thus evidence should be excluded as unduly prejudicial " 'when it is of
such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but to reward or
4 The court instructed the jury with CALCRIM No. 1191, which told the jury: (1) it
could consider the evidence of uncharged sex offenses only if the People proved by a
preponderance of the evidence that Jessee committed them; (2) if the People did not meet
that burden, it was to disregard the evidence entirely; (3) if the jury decided Jessee
committed the uncharged sex offenses, it could consider that evidence to help it decide
whether he committed aggravated sexual assault of a child and lewd acts upon a child as
charged in the current case; and (4) evidence of other uncharged sexual offenses was one
factor to be weighed "together with all the other evidence" and was not sufficient by itself
to prove his guilt of the current charges. The jury was told to consider the instructions as
a whole, and was instructed in detail on the reasonable doubt standard. (Accord, People
v. Loy, supra, 52 Cal.4th at p. 75.) We presume the jury understood and followed the
court's instructions. (People v. Lindberg (2008) 45 Cal. 4th 1, 26.)
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punish one side because of the jurors' emotional reaction.' " (People v. Branch, supra, 91
Cal.App.4th at p. 286.)
Here, we cannot say Jessee sufficiently demonstrated that the evidence of the
uncharged acts against Angelo would unduly prejudice him with the jury, or that the
prejudice resulting would substantially outweigh the probative value of the evidence for
purposes of section 1108. The acts are "extremely relevant" to his charged offenses
(People v. Van Winkle (1999) 75 Cal. App. 4th 133, 141), particularly where Jessee tried to
paint A. as mistaken or a liar. (People v. Waples, supra, 79 Cal. App. 4th 1395 [propensity
evidence highly relevant to dispute an attempt to paint current victims of sex offenses as
liars or mistaken in their claims of molestation].) Under the relevant standards, and
viewing the evidence in the light most favorable to the trial court's ruling (see People v.
Carter (2005) 36 Cal. 4th 1114, 1148), we cannot conclude the court's decision to admit
Angelo's testimony as to defendant's prior acts was arbitrary, capricious, manifestly
absurd, or exceeded the bounds of reason. (People v. Mullens (2004) 119 Cal. App. 4th
648, 658.)
Thus, we perceive no miscarriage of justice in the admission of the prior act
evidence as to Angelo under section 1108 to prove Jessee's propensity to commit the
charged offenses. (People v. Dejourney, supra, 192 Cal.App.4th at p. 1105.) Even if we
were to reach a different conclusion that an abuse of discretion occurred, it would be
harmless error. Jessee maintains A.'s credibility was weak in view of the fact she had
waited four years to report the misconduct; neither her father or mother noticed any signs
of abuse; A. initially denied any abuse and only reported it to a vice principal after
12
getting into a fight at school; that in Jessee's prior trial on the charges, the jury was
unable to reach a verdict resulting in a mistrial; and that the trial presented a close
credibility call as reflected by the jury's request for a readback of A.'s testimony. He
claims his credibility was stronger, and "bolster[ed]" by evidence of his religious
transformation as well as the "requirement of honesty that is a prominent component of
his faith." The record shows that the jury not only asked for a readback of A.'s testimony
but also the recording of Jessee's interview with Detective Botsford. Contrary to Jessee's
argument, we perceive from the jury's readback that it carefully reviewed the evidence to
determine whether it presented a serious question concerning A.'s credibility and any
reasonable doubt as to Jessee's guilt. Further, Jessee admitted that at the time of the
offenses against A., he was still an alcoholic and smoked marijuana, often drinking four
or five times a week and sometimes more, and drank to the point of intoxication. He
admitted he maintained an addiction to pornography, some of which involved women
dressed as young girls. He also admitted his inhibitions were lowered when he drank.
The jury plainly determined A. to be credible and Jessee was not, and having reviewed
A.'s testimony, the testimony of her father and mother, and the testimony of Detective
Botsford, we conclude it is not reasonably probable an outcome more favorable to Jessee
would have resulted absent any presumed error. (People v. Watson (1956) 46 Cal. 2d 818,
836.)
C. Prior Offenses Against F.
We likewise perceive no abuse of discretion in the court's admission of the
evidence pertaining to Jessee's molestation of F. The jury learned that Jessee had pleaded
13
guilty in Oregon to a crime for his conduct with F., had served five months in jail, was on
probation for three years, and had been required to register as a sex offender, though he
failed to meet that requirement for several years. (Accord, People v. Loy, supra, 52
Cal.4th at p. 61 [defendant's conviction of prior assaults, which had been established and
was certain, "strongly, support[ed] their admission" under sections 1108 and 352].) As in
Loy, Jessee thus "bore no new burden of defending against the charges," and "[t]he jury
would not be tempted to convict him of the charged crime to punish him for the earlier
crime." (Loy, at p. 61; see also People v. Lewis, supra, 46 Cal.4th at p. 1287.)
"Additionally, the conviction[] meant there was little danger of confusing the issues or
requiring an inefficient minitrial to determine defendant's guilt of the previous crimes."
(Loy, at p. 61.)
Further, the evidence regarding Jessee's offenses against F. bore some similarity to
the present offenses against A., in that both offenses involved young girls, F. at age 13,
and A. at age 10; both involved the fondling of their breasts, sodomy, the use of force or,
at the very least, compulsion; and as to both, Jessee told the girls to keep the acts secret.
As the People point out, F.'s testimony was brief; it took less than a half an hour of about
a day and a half of trial testimony, and spanned only about 14 pages of the trial transcript.
Under all of the circumstances, we cannot say the prejudicial factors outweighed the
probative value of this evidence, and conclude the trial court did not act arbitrarily or
irrationally in admitting it.
II. Admission of Evidence of Jessee's Relationship with F. Under Section 1101
14
Jessee further contends the trial court prejudicially erred by admitting the evidence
as to F. under section 1101, subdivision (b).5 Specifically, he maintains the evidence as
to F.—which, as he characterizes it, established a "consensual" relationship with a "post-
pubescent teenager"—was not sufficiently similar to the charged offenses to permit an
inference of intent, and thus cannot support a rational inference he harbored the same
intent in each situation. Jessee also points out his defense was not that he lacked the
requisite lewd intent, but that he did not touch A. at all; that the incidents never occurred.
Thus, he argues, the evidence lacked any probative value on any issue in the case.
Finally, Jessee argues any possible slight probative value was outweighed by the risk of
prejudice.
Because we have concluded the trial court did not err in finding the evidence as to
F. relevant and admissible under section 1108, we need not discuss its admissibility under
section 1101. (People v. Soto, supra, 64 Cal.App.4th at pp. 983-984, 992; see, e.g.,
People v. Lewis, supra, 46 Cal.4th at p. 1288 [defendant's failure to establish an abuse of
5 Under section 1101, subdivision (b), " '[e]vidence of uncharged crimes is
admissible to prove identity, common design or plan, or intent only if the charged and
uncharged crimes are sufficiently similar to support a rational inference of identity,
common design or plan, or intent.' " (People v. Carter, supra, 36 Cal.4th at p. 1147; see
also People v. Walker (2006) 139 Cal. App. 4th 782, 795-796.) "[T]hat a defendant
previously committed a similar crime can be circumstantial evidence tending to prove his
identity, intent, and motive in the present crime. Like other circumstantial evidence,
admissibility depends on the materiality of the fact sought to be proved, the tendency of
the prior crime to prove the material fact, and the existence vel non of some other rule
requiring exclusion." (People v. Roldan (2005) 35 Cal. 4th 646, 705, disapproved on
other grounds as stated in People v. Doolin (2009) 45 Cal. 4th 390, 421 & fn. 22.) "When
a defendant pleads not guilty, he or she places all issues in dispute, and thus the
perpetrator's identity, intent and motive are all material facts." (People v. Walker, at p.
796, citing Roldan, at pp. 705-706.)
15
discretion in admitting evidence prior assault under section 1101 rendered irrelevant the
question of whether all of that evidence was admissible under section 1108].)
Nevertheless, our analysis as to the similarities between the acts against F. and those
against A. is sufficient to establish the propriety of their admission under section 1101,
subdivision (b), particularly as to common plan and scheme. " 'To establish the existence
of a common design or plan, the common features must indicate the existence of a plan
rather than a series of similar spontaneous acts, but the plan thus revealed need not be
distinctive or unusual. [Citation.] '[A] common scheme or plan focuses on the manner in
which the prior misconduct and the current crimes were committed, i.e., whether the
defendant committed similar distinctive acts of misconduct against similar victims under
similar circumstances.' " (People v. Walker, supra, 139 Cal.App.4th at p. 803.) It is of
no moment that the court declined to admit the evidence on the intermediate fact of
common scheme or plan. " 'If a judgment rests on admissible evidence it will not be
reversed because the trial court admitted that evidence upon a different theory, a mistaken
theory, or one not raised below.' " (People v. Blacksher (2011) 52 Cal. 4th 769, 806, fn.
21.)
Though Jessee's intent with respect to the offenses against A. may not have been
disputed and F.'s testimony not necessarily probative on that particular issue, the fact that
F.'s testimony was highly probative on Jessee's propensity, common design or plan, and
the absence of mistake or accident, renders nonprejudicial its admission for the purpose
of proving intent. (Accord, People v. Waples, supra, 79 Cal.App.4th at pp. 1395-1396.)
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
AARON, J.
17