Filed 7/20/16 P. v. Khalif CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062821
v. (Super.Ct.No. FSB1105219)
WAEL FAYAEZ KHALIF, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed in part and reversed in part.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
and Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
Respondent.
1 I. INTRODUCTION
On September 17, 2014, a jury convicted defendant and appellant, Wael Fayaez
Khalif, of attempted unlawful sexual intercourse with a minor (Pen. Code, §§ 664, 261.5,
subd. (c), count 1),1 and of going to meet with a minor for lewd purposes (§ 288.4, subd.
(b), count 2). Defendant was sentenced to state prison on count 2 for four years and to a
consecutive four-month term on count 1. The trial court stayed execution of defendant’s
sentence, and placed defendant on supervised probation for 36 months, with various
terms and conditions, including that he serve 210 days in county jail.
On this appeal, defendant challenges both convictions, arguing (1) there was
insufficient evidence to support either conviction, (2) the evidence showed he was
entrapped into committing both offenses as a matter of law, (3) the trial court erred in not
giving a unanimity instruction sua sponte on count 2, and (4) the trial court erred in
admitting evidence of defendant’s prior sexual offense. Defendant also asserts the
combined effect of the trial errors violated his constitutional due process rights. The
People concede that defendant’s count 1 conviction for attempted unlawful sexual
intercourse with a minor must be reversed because insufficient evidence shows defendant
specifically intended to have sexual intercourse, as opposed to engaging in other sexual
activity, with a minor, and we agree. In all other respects, we affirm the judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 II. FACTUAL BACKGROUND
On October 15, 2011, San Bernardino police officers conducted a prostitution
sting operation from an apartment complex in San Bernardino. Using a Spanish language
magazine called “Exclusiva,” officers called the number for a business named “Pasion
Spa,” which featured a scantily clad woman, and which advertised a 30-minute massage
for $60. Based on the language and content of the advertisement for Pasion Spa,
including the photograph of the scantily clad woman, police suspected the company was
involved in prostitution services. A male officer called Pasion Spa and asked for “full
services,” which he understood meant sexual services. A woman arrived at the apartment
approximately two and a half hours later, and she was arrested for prostitution. This
woman led police to her female pimp who was parked outside the apartment complex,
and the pimp was arrested for pimping and pandering.
The pimp directed police to her cell phone, which was in her car, and police
confirmed that her cell phone number was the same as the one listed on the Pasion Spa
advertisement. The pimp’s cell phone, which had received over 15 missed calls, received
a call around 6:21 p.m. A female officer posed as the pimp and answered the call from a
man who gave his name as “Alex.” Police later confirmed defendant was Alex.
Defendant asked whether any “very young girls” were available, and the officer
confirmed that there were, even though no underage girls were actually involved or
arrested during the sting operation. Based on her training and experience, the officer
understood “very young girls” to mean a juvenile. Defendant advised the officer he had
3 an errand to run and would call back later. Approximately 20 minutes later, the pimp’s
telephone received four calls from defendant’s number. The officer missed the first three
calls but answered the last call, and defendant told the officer he had cancelled his errand.
The officer then told defendant she had two girls available, a 16 year old and a nearly 18
year old, and she described what the girls looked like. She also gave defendant the
address of the apartment and explained to him that it would be $200 per hour for one girl;
defendant asked if there was a discount if he got both girls for 30 minutes each. During
the conversation, defendant asked the officer if one of the girls was 18. The officer
reiterated that the girls were 16 and almost 18, and defendant responded, “Oh. Okay.
Well, alright.” After the officer asked whether defendant would be coming to the
apartment at that time, defendant asked: “Are you sure? Yeah, yeah. I want to be like
over eighteen (unintelligible) understand your English but I’ll be there.” Defendant again
asked, “Oh, okay. How old?,” to which the officer responded, “Almost 18.” Defendant
again responded, “Oh, okay.” Defendant never specifically asked for a girl under 18
years of age.
The officer then asked defendant, “What are you looking for,” and defendant
responded, “Well, I can’t tell you on the phone because I don’t like to get, you know,
under eighteen so I don’t know, I wanna, I see you.” Defendant then asked the officer,
“Are you affiliated with police or anything,” which the officer denied. Defendant hung
up the telephone after receiving directions to the apartment from the officer, but called
five more times for additional directions. During one of these calls, the officer reminded
4 defendant that the girls were young, and asked defendant to be gentle with them.
Defendant assured her that he would be gentle with the girls, and he mentioned he would
bring extra cash for tips.
Defendant arrived at the apartment around 8:45 p.m. and was arrested after police
officers confirmed he was the person who identified himself as Alex. Defendant was in
possession of $963 in cash, as well as a cell phone, which police confirmed defendant
had used to call the pimp’s cell phone.
III. DISCUSSION
A. Defendant’s Count 1 Conviction for Attempted Unlawful Sexual Intercourse With a
Minor Must be Reversed Because Insufficient Evidence Supports It
As noted, defendant was charged and convicted in count 1 of felony attempted
unlawful sexual intercourse with a minor. (§§ 664, 261.5, subd. (c).) “Unlawful sexual
intercourse is an act of sexual intercourse accomplished with a person who is not the
spouse of the perpetrator, if the person is a minor.” (§ 261.5, subd. (a).) Sexual
intercourse is defined as “any penetration, no matter how slight, of the vagina or genitalia
by the penis,” and a minor is defined as “a person under the age of 18 years.” (§ 261.5,
subd. (a).) This crime can be charged as a felony, as it was here, if the victim is more
than three years younger than the perpetrator. (§ 261.5, subd. (c).)
Defendant contends the People presented insufficient evidence that he committed
attempted sexual intercourse with a minor, as the People did not present any evidence of
defendant’s age. (§ 261.5, subd. (c).) Defendant also asserts there was insufficient
5 evidence he “took a direct but ineffective step toward committing unlawful sexual
intercourse with a minor.” (§ 21a.)
The People acknowledge the evidence established defendant intended to engage in
some form of lewd and lascivious conduct with minors, but they concede there was no
evidence defendant specifically intended to engage in sexual intercourse, as opposed to
engaging in another form of sexual activity with them, and for this reason the count 1
conviction must be reversed. We agree the People did not introduce any evidence that
defendant specifically intended to have sexual intercourse with the minors, as opposed to
engaging in other sexual activity with them. While it was possible defendant intended to
have sexual intercourse with the minors, “a mere possibility is nothing more than
speculation. Speculation is not substantial evidence.” (People v. Ramon (2009) 175
Cal.App.4th 843, 851; see People v. Perez (1992) 2 Cal.4th 1117, 1133 [“‘“A finding of
fact must be an inference drawn from evidence rather than . . . a mere speculation as to
probabilities without evidence”’”].) Because the People failed to present evidence
defendant went to the apartment with the specific intention of engaging in unlawful
sexual intercourse with any minors, defendant’s count 1 conviction for attempted
unlawful sexual intercourse with a minor was not supported by substantial evidence and
must therefore be reversed.
6 B. Substantial Evidence Supports Defendant’s Count 2 Conviction of Going to Meet
With a Minor for Lewd Purposes
Defendant contends there was insufficient evidence to support his count 2
conviction of going to meet with a minor for lewd purposes (§ 288.4, subd. (b)), which is
committed if a person “goes to the arranged meeting place at or about the arranged time”
in order to meet “with a minor or a person he or she believes to be a minor for the
purpose of exposing his or her genitals or pubic or rectal area, having the child expose his
or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior . . . .”
(§ 288.4, subds. (a), (b).) For purposes of the statute, a minor is a person under the age of
18 (People v. Yuksel (2012) 207 Cal.App.4th 850, 855), and the jury was so instructed.
Defendant argues that his conviction for violating section 288.4 cannot be sustained
because there were no actual minors, or persons that defendant believed to be minors, that
defendant arranged to meet with.
In assessing the sufficiency of the evidence, an appellate court reviews the entire
record to determine whether it contains substantial evidence that is reasonable, credible,
and of solid value, such that a rational trier of fact could find the defendant guilty beyond
a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) We view the
evidence in the light most favorable to the judgment, drawing all reasonable deductions
in favor of the judgment. (People v. Boyer (2006) 38 Cal.4th 412, 480.) If the verdict is
supported by substantial evidence, we must give “‘“due deference to the trier of fact”’”
and not retry the case. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh
7 the evidence; rather, we evaluate whether the evidence presented at trial and the
reasonable inferences that could be derived from the evidence support the jury’s
conclusions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendant claims a violation of section 288.4 requires that there be an actual
minor, or minors, with whom he arranged to meet. This requires us to interpret section
288.4. “Our role in construing section [288.4], as with any statute, is to ascertain the
Legislature’s intent so as to effectuate the purpose of the law. We accomplish this task if
possible by giving the words of the statute their usual, ordinary meanings. [Citation.]”
(In re Reeves (2005) 35 Cal.4th 765, 770.) “If the statutory language is unambiguous,
then its plain meaning controls. If, however, the language supports more than one
reasonable construction, then we may look to extrinsic aids, including the ostensible
objects to be achieved and the legislative history. [Citation.]” (People v. Cole (2006) 38
Cal.4th 964, 975.) In interpreting a statute, the ultimate goal is to “‘select the
construction that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui
(2002) 28 Cal.4th 205, 212.)
Here, the usual and ordinary meaning of the phrase “arranges a meeting with a
minor or a person he or she believes to be a minor” in section 288.4 refers to the ultimate
goal of meeting a minor to engage in lewd or lascivious behavior. (See People v. Yuksel,
supra, 207 Cal.App.4th at p. 853 [“The statute targets an adult who . . . arranges a
8 sexually illicit meeting with a minor.”].) Contrary to defendant’s argument, there is no
requirement in section 288.4 that a minor be involved in arranging the meeting. The
plain meaning of section 288.4 also does not support defendant’s interpretation that he
cannot be convicted of section 288.4 if there were no actual minors that defendant
arranged to meet.
Our interpretation of section 288.4 is bolstered by the legislative history of the
statute. “On November 7, 2006, the voters enacted Proposition 83, The Sexual Predator
Punishment and Control Act: Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec.
(Nov. 7, 2006); hereafter Proposition 83 or Jessica’s Law). Proposition 83 was a wide-
ranging initiative intended to ‘help Californians better protect themselves, their children,
and their communities’ (id., § 2, subd. (f)) from problems posed by sex offenders by
‘strengthen[ing] and improv[ing] the laws that punish and control sexual offenders’ (id.,
§ 31).” (In re E.J. (2010) 47 Cal.4th 1258, 1263) Proposition 83 added new laws,
including section 288.4.2
The stated purposes of section 288.4 include “provid[ing] a comprehensive,
proactive approach to preventing the victimization of Californians by sex offenders,”
addressing “key flaws” in other bills “that inadvertently tie the hands of police in
performing . . . sting operations,” “mak[ing] all of California’s communities safer from
2 The June 22, 2006 amended Senate Bill referred to section 288.3. (Sen. Bill No. 1128 (2005-2006 Reg. Sess.) § 7, as amended June 22, 2006.) In 2007, section 288.3 was renumbered as section 288.4. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 172 (2007-2008 Reg. Sess.) as amended Sept. 7, 2007.)
9 all sexual predators, not just some,” and authorizing police to use decoys to accomplish
the statute’s purpose. (Sen. Rules Com., Off. of Sen. Floor Analyses, 2d reading analysis
of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended Aug. 22, 2006, p. 7.)
In this case, there is substantial evidence that defendant arranged to meet with
minors, or with persons he believed to be minors, for the purpose of engaging in lewd and
lascivious behavior. In speaking with the officer who posed as the pimp, defendant asked
whether any “very young girls” were available. After police confirmed the only girls
available were both minors, and rather than ending the conversation and rejecting the
opportunity to meet with two minors, defendant asked for directions to the two minor
girls’ location, told the officer that he would be gentle with the girls, and brought $963 in
cash to the apartment.
The sting operation furthered section 288.4’s goal of providing broad protection of
minors from sexual predators. On the other hand, defendant’s proposed interpretation
severely limits the protections under section 288.4, as it would exclude sting operations
where, as here, no minors were actually involved in the operation. Such an interpretation
would lead to absurd consequences, and would not further section 288.4’s stated goal of
providing “a comprehensive, proactive approach to preventing the victimization of
Californians by sex offenders.”
We conclude substantial evidence shows defendant arranged to meet with a minor,
or with a person he believed to be a minor, and was therefore guilty as charged in count
2.
10 C. The Evidence Did Not Establish Entrapment as a Matter of Law
At trial, defendant relied on an entrapment defense. Defendant now claims the
judgment must be reversed because the record establishes he was entrapped by police as a
matter of law. We disagree.
“In California, the test for entrapment focuses on the police conduct and is
objective. Entrapment is established if the law enforcement conduct is likely to induce a
normally law-abiding person to commit the offense. [Citation.] ‘[S]uch a person would
normally resist the temptation to commit a crime presented by the simple opportunity to
act unlawfully. Official conduct that does no more than offer that opportunity to the
suspect—for example, a decoy program—is therefore permissible; but it is impermissible
for the police or their agents to pressure the suspect by overbearing conduct such as
badgering, cajoling, importuning, or other affirmative acts likely to induce a normally
law-abiding person to commit the crime.’ [Citation.]” (People v. Watson (2000) 22
Cal.4th 220, 223, quoting People v. Barraza (1979) 23 Cal.3d 675, 689-690; People v.
Federico (2011) 191 Cal.App.4th 1418, 1422.)
“‘Entrapment as a matter of law is not established where there is any substantial
evidence in the record from which it may be inferred that the criminal intent to commit
the particular offense originated in the mind of the accused.’ [Citation.]” (People v.
Moran (1970) 1 Cal.3d 755, 760; see People v. Lee (1990) 219 Cal.App.3d 829, 836
[“An appellate court will only find entrapment as a matter of law where ‘the evidence is
so compelling and uncontradicted the jury could draw no other reasonable inference.’”].)
11 Substantial evidence shows that the criminal intent to meet with two minors for
lewd purposes originated in defendant’s mind, as it was defendant who initiated the call
to Pasion Spa and asked for “very young girls.” Although defendant never specifically
asked for a minor, and even specifically asked about an 18 year old, he also did not object
when the female officer, posing as the pimp, advised him that the two available girls were
minors. Instead, after being told both girls were minors, he negotiated a price for the two
girls and promised to be gentle with them. He also repeatedly called the number for
Pasion Spa to obtain additional directions to the apartment, where he was arrested with
$963 in cash. The police running the sting operation did not induce defendant to commit
the offense; rather, they merely offered defendant the opportunity to act unlawfully.
Based on this evidence, we conclude defendant was not entrapped by the police as a
matter of law.
D. The Trial Court Was Not Required to Give the Jury a Unanimity Instruction Sua
Sponte on Count 2
Defendant argues the trial court erroneously failed to instruct the jury that it had to
unanimously decide which minor defendant attempted to meet in count 2, to wit, the 16
year old or the almost 18 year old. The trial court was under no obligation to give such a
unanimity instruction sua sponte. The conviction was proper because the evidence shows
defendant intended to meet with one or both of the minors.
A “unanimity instruction is appropriate ‘when conviction on a single count could
be based on two or more discrete criminal events,’ but not ‘where multiple theories or
12 acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In
deciding whether to give the instruction, the trial court must ask whether (1) there is a
risk the jury may divide on two discrete crimes and not agree on any particular crime, or
(2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to
the exact way the defendant is guilty of a single discrete crime. In the first situation, but
not the second, it should give the unanimity instruction.” (People v. Russo (2001) 25
Cal.4th 1124, 1135.) A unanimity instruction is not required where, as here, the
defendant is charged with one crime based on one act that affected two victims, and
where there is no evidence the defendant committed the crime as to one victim but not the
other. (People v. Carrera (1989) 49 Cal.3d 291, 311-312 [one robbery charge involving
two victims]; see People v. Jennings (2010) 50 Cal.4th 616, 679.)
Defendant was charged and convicted in count 2 of one crime—going to meet
with a minor for lewd purposes. The evidence shows defendant made an arrangement
with the female officer, who was posing as the pimp, to meet either, or both, of the two
minor girls. Because defendant committed one crime, and because there was no evidence
defendant committed the crime as to one potential victim but not the other, the trial court
was not required to give the jury a unanimity instruction sua sponte, as there was no “risk
the jury may divide on two discrete crimes and not agree on any particular crime.”
(People v. Russo, supra, 25 Cal.4th at p. 1135.)
13 E. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Defendant’s
Prior Sexual Offense
Lastly, defendant asserts the trial court erred in admitting evidence of defendant’s
prior uncharged sexual offense involving a minor, as such evidence was inadmissible to
prove defendant’s conduct on October 15, 2011, particularly where his count 2 conduct
was dissimilar from his prior sexual offense. The trial court did not err in admitting
evidence of defendant’s prior sexual offense.
1. Background—Evidence of Defendant’s Prior Uncharged Sex Offense
On June 24, 2014, the People filed a brief seeking to introduce the testimony of a
woman who claimed defendant molested her in 2007, when she was 15 years old. The
People sought to introduce this evidence pursuant to Evidence Code section 1108, which
provides, in pertinent part: “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 [Evidence Code] Section 1101, if the evidence is
not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd.
(a).) Defendant moved in limine to exclude this evidence pursuant to Evidence Code
section 352, but the court ruled the evidence would be admissible pursuant to Evidence
Code section 1101, subdivision (b), given the similarities between both offenses,
including defendant’s attempts to pay for sex in both situations.
At trial, the victim of the prior sex offense testified she was 15 years old in May
2007. At 7:15 p.m. one evening in May, she was ordering food at a fast food restaurant a
14 few blocks from her parents’ business. Defendant approached her and asked whether she
was a street walker, which she interpreted as defendant asking her if she was a prostitute.
When she said no, he asked whether she would be interested in being a model, and told
her that he had more information in his car. Defendant asked if she had a driver’s
license, and she advised him she was only 15 years of age. She got into defendant’s car,
where he showed her hundreds of dollars in cash. He drove the victim down a small
street behind the restaurant and stopped about a block away from the restaurant. He then
asked her whether she had any hair on her body, and she lifted her shirt to show him that
she did not have any hair on her stomach. He then put his hand up the victim’s shirt,
touching her breasts, before she told him to stop. He stopped, apologized, and then gave
her $50 for making her feel uncomfortable. He asked whether she had a boyfriend,
which she denied. He then smiled at her, told her he was horny, and then reached down
her pants, touching the top of her vagina. She told him that she was uncomfortable, got
out of the car, went to her parents’ business, and reported the incident to the police. Her
parents took her to the emergency room to be examined, and she gave the $50 to the
police.3
The trial court instructed the jury that the People presented evidence that
defendant committed the crime of a lewd act with a child between the ages of 14 and 15
3 Defendant was charged with a sex offense involving the 15-year-old victim, but he ultimately pled guilty to assault with a deadly weapon other than a firearm. (§ 245, subd. (a)(1).) It is unclear from the record the basis for defendant ultimately pleading guilty to this charge.
15 years old that was not charged in the present case. (§ 288, subd. (c)(1).) The trial court
further instructed that, if the People met their burden of showing defendant committed the
uncharged offense, the jury could, but was not required to, conclude defendant was
disposed or inclined to commit sexual offenses based on his commission of the prior
uncharged sex offense. The jury was also instructed that it could not convict defendant of
either count based solely on his commission of the prior sexual offense, and that the
purpose of this evidence was “for the limited purpose of determining the defendant’s
intent, plan, and knowledge.”
2. Standard of Review
A trial court’s decision to admit evidence pursuant to Evidence Code section 1101
or 1108 is reviewed for abuse of discretion. (People v. Leon (2015) 61 Cal.4th 569, 597
[Evid. Code, § 1101, subd. (b)]; People v. Merriman (2014) 60 Cal.4th 1, 58 [Evid. Code,
§ 1108].) A court does not abuse its discretion in admitting evidence of other sexual acts
unless its ruling “‘“falls outside the bounds of reason”’” and “[w]e will only disturb a
trial court’s ruling under Evidence Code section 352 where the court has exercised its
discretion in a manner that has resulted in a miscarriage of justice. [Citation.]” (People
v. Miramontes (2010) 189 Cal.App.4th 1085, 1098.)
3. Analysis
Evidence Code section 1101, subdivision (a), prohibits “evidence of a person’s
character or a trait of his or her character . . . when offered to prove his or her conduct on
a specified occasion.” However, under subdivision (b) of Evidence Code section 1101,
16 “evidence that a person committed a crime” may be admissible “when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . . .)” And, as noted, pursuant to Evidence Code section
1108, “[i]n 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 [Evidence Code] Section 1101, if the evidence is not inadmissible
pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd. (a).)
If a prior sexual offense is similar in nature to the charged offense, the similarity
of the offenses is central to the trial court’s “evaluation of whether the evidence tended to
prove motive, intent, a common design, defendant’s identity as the perpetrator, or the
victim’s lack of consent, under Evidence Code section 1101. [Citations.] In addition, the
degree of similarity is relevant to the evaluation of whether the probative value of the
evidence outweighs its prejudicial effect under Evidence Code section 1108. [Citation.]”
(People v. Lewis (2009) 46 Cal.4th 1255, 1285.) “[T]he clear purpose of [Evidence
Code] section 1108 is to permit the jury’s consideration of evidence of a defendant’s
propensity to commit sexual offenses,” and “[w]hether an offense is charged or
uncharged in the current prosecution does not affect in any way its relevance as
propensity evidence.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1164.)
Defendant argues that the prior sexual offense and the current charged offenses
were dissimilar because, in the prior sexual offense, he “allegedly took the initiative to
approach [the 15-year-old victim] and take her away,” while, here, he only called a
17 massage establishment and attempted to procure a girl who was at least 18 years of age.
We reject defendant’s argument, as, in both incidents, defendant attempted to pay a minor
and sought to engage the minor in some form of lewd or lascivious behavior, even if he
utilized different methods to achieve this objective. As noted, in the prior uncharged
sexual offense, he touched a 15-year-old’s breasts, told her he was horny, and touched the
top of her vagina. He also gave her $50 because he had made her feel uncomfortable.
Here, defendant called Pasion Spa and asked for “very young girls,” agreed to meet the
two girls even after being told they were both minors, promised he would be gentle with
the girls, and arrived at the apartment with $963 in cash. Based on the similarity of
defendant’s attempts to pay a minor to engage in lewd and lascivious behavior, the prior
sexual offense was admissible under Evidence Code section 1101, subdivision (b) to
show defendant had the motive, intent, plan or knowledge of meeting with the two
minors and paying them to engage in lewd or lascivious behavior.
Furthermore, the degree of similarity between the two incidents is relevant to the
issue of whether evidence of the prior sexual offense was admissible under Evidence
Code section 1108, subdivision (a). As in Miramontes, the two incidents were not unduly
remote in time, as defendant committed the prior sexual offense in 2007 and the current
one in 2011. (People v. Miramontes, supra, 189 Cal.App.4th at p. 1102 [four-year
passage of time did not make prior sexual offense unduly remote or dissimilar from
charged offense].) In both incidents, defendant attempted to engage teenagers in lewd
and lascivious behavior. Additionally, the trial court instructed the jury that they could
18 consider the prior sexual offense evidence only if the People proved by a preponderance
of the evidence that the prior sexual offense occurred, and only to determine defendant’s
intent, plan and knowledge in committing the charged offenses. In doing so, the trial
court ensured that the jury did not confuse the issues, and was not misled to convict
defendant based solely on evidence of the prior sexual offense.
On this record, we conclude the trial court’s admission of defendant’s prior sexual
offenses did not “‘“fall[] outside the bounds of reason.”’” (People v. Miramontes, supra,
189 Cal.App.4th at p. 1098.) Thus, the trial court did not abuse its discretion when it
admitted evidence of defendant’s prior uncharged sexual offenses, whether under
Evidence Code section 1101, subdivision (b), or Evidence Code section 1108,
subdivision (a).
F. The Trial Court Did Not Commit Cumulative Error
Defendant argues the combined effect of the trial errors violated his right to due
process of law, thus requiring a reversal of the entire judgment. Although we agree that
defendant’s count 1 conviction for attempted unlawful sexual intercourse with a minor
was not supported by substantial evidence, we have rejected the remainder of defendant’s
claims of error. Hence, there is no cumulative error. (People v. Cook (2006) 39 Cal.4th
566, 608; see People v. Tully (2012) 54 Cal.4th 952, 1061 [rejecting claim of cumulative
error based on forfeiture and on the merits].)
19 IV. DISPOSITION
Defendant’s conviction for attempted unlawful sexual intercourse with a minor in
count 1 is reversed, and the case is remanded to the trial court for resentencing. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.