Filed 10/23/14 P. v. Wolford CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E057122

v.                                                                        (Super.Ct.No. RIF10005798)

STEPHEN JAMES WOLFORD,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge

(retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI,

§ 6 of the Cal. Const.) Affirmed.

         Boyce & Schaefer and Robert E. Boyce for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry J.T. Carlton and William

M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant and appellant, Stephen James Wolford, guilty of

annoying or molesting a child under 18 years of age.1 (Pen. Code, § 647.6, subd.

(a)(1).)2 The trial court granted defendant summary probation for a period of 36

months, with the conditions defendant serve 120 days in the custody of the county

Sheriff and participate in an electronic monitoring (ankle bracelet) program. Defendant

was also required to register as a sexual offender. (§ 290.)

       Defendant raises seven issues on appeal. First, defendant asserts his conviction

is not supported by substantial evidence. Second, defendant contends the trial court

erred by admitting evidence of uncharged prior bad acts. There are four sub-issues

raised within the second contention. Third, defendant asserts the trial court erred by

admitting hearsay evidence. Fourth, defendant contends the prosecutor committed

misconduct during closing argument. Fifth, defendant asserts his trial counsel rendered

ineffective assistance. Sixth, defendant contends the cumulative effect of the alleged

errors requires reversal. Seventh, defendant asserts mandatory sex offender registration

for a section 647.6 conviction violates equal protection. We affirm the judgment.




       1 The jury was unable to reach a verdict on Count 1, an allegation of committing
a lewd and lascivious act upon the body of a child who is 14 or 15 years old (Former
Pen. Code, § 288, subd. (c)). The trial court declared a mistrial as to Count 1 and
dismissed the charge in the interests of justice. (Pen. Code, § 1385.) The jury was split
8-4, with the majority voting not guilty.

       2 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.


                                            2
                     FACTUAL AND PROCEDURAL HISTORY

       A.     PROSECUTION’S EVIDENCE

              1.     BACKGROUND

       Defendant was a teacher at Eleanor Roosevelt High School (the high school) in

Eastvale. Defendant taught drafting classes and had two classrooms. The victim, who

is female, was a student at the high school. The victim was 15 years old in May and

June 2010. The victim was not defendant’s student; however, the victim and the

victim’s female friends would sometimes skip their scheduled classes and go to one of

defendant’s classrooms, where they could use the computers. Defendant told the girls

they “should go back to class,” but did not make them leave. The victim began going to

defendant’s classroom sometime between January and June 2010, and she went to his

classroom “regularly.”

              2.     ASSORTED INTERACTIONS

       On one occasion, when defendant observed the victim applying make-up, he said

to her, “[You] can’t fix perfection.” The comment caused the victim to feel

“[e]xtremely uncomfortable.” On other occasions, defendant told the victim, “You’re

not like the rest of the girls,” and told the victim he would give her “an automatic A,” if

she signed-up for his class. Between classes, during “passing periods,” defendant tried

to hug the victim.

       The victim told defendant she wanted a yearbook, but her mother would not

purchase one for her. Defendant gave the victim a yearbook. The victim was going to

pay defendant back, but he told her it was a gift. Specifically, defendant said, “You


                                             3
don’t have to pay me back because you’re my daughter, and I will take care of you.”

On the yearbook page with photographs of defendant and the student club he

coordinated, defendant placed two poems. When defendant gave the yearbook to the

victim, he pulled her toward his teacher’s desk, while students were on the opposite side

of the classroom, and whispered both poems into her ear. The victim believed the other

students could not hear defendant whispering the poems. The victim felt “very

uncomfortable” when defendant gave her the yearbook. At times, defendant made

comments “to all the girls in the class” saying, “You’re my daughters; I’ll take care of

you.”

        In June 2010, the victim wanted to go to lunch at In-N-Out with two of her

friends, Elvira and Areli.3 The victim asked defendant to take her and her friends to the

restaurant. The victim was “in [defendant’s] face” asking “Can you take us? Can you

take us?” Defendant “said no a couple times,” but then agreed to take the victim and

her friends.

        Defendant drove the victim and her friends, and paid for the food. Defendant

wanted the victim to sit in the front passenger seat of his car, but she refused. On the

way back to school, defendant “took the long way,” and said he wanted the girls to go

swimming at his house. The girls did not go swimming at defendant’s house. Elvira

believed defendant paid more attention to the victim than the other girls, but that the

victim also sought attention from defendant.

        3We use first names (omitting last names) because the people involved were
minors at the time these events took place. No disrespect is intended.


                                             4
                 3.   CANDY INCIDENT4, 5

       In May or June 2010, the victim’s friend, Ivette wanted candy. Ivette told the

victim to ask defendant for candy, because Ivette believed defendant liked the victim

and would give her candy. Ivette believed defendant did not like Ivette and would not

give her candy if she asked him. While defendant was teaching, the victim asked

defendant for candy. He told her to wait until after class. The victim waited.

       After class, the victim again asked defendant for candy. Defendant, the victim,

and Ivette went to his other classroom. The classroom was empty. Defendant and the

victim entered the classroom, while Ivette waited near the doorway, where she could see

defendant and the victim. Defendant opened a storage cabinet that contained candy.

Defendant told the victim to take all the candy she wanted. The victim took candy for

Ivette. After the victim put the candy in her bag, defendant grabbed the victim’s hand,

pulled her toward him, and kissed her on her chest. The kiss fell above the victim’s

right breast, “several inches below her collarbone.” Defendant’s lips touched the

victim’s skin.

       Ivette saw defendant hug the victim and “go towards her chest.” Defendant’s

face was approximately three inches from the victim’s chest when Ivette turned away


       4 At the trial court, the alleged kissing incident was referred to as “the candy
incident.” Defendant, in his briefs for this court, also refers to the alleged incident as
“the candy incident.” For the sake of continuity, we will use the same label.

       5   The candy incident comprised Count 1. The jury hung on Count 1, with an 8-4
split in favor of innocence. We present this portion of the record for the sake of
defendant’s procedural contentions.


                                              5
and said “Let’s go” to the victim. The victim felt “[d]isgusted” after the kiss. The

victim left the classroom. The victim talked with Ivette about the kiss.

       The victim continued going to defendant’s classroom after the candy incident.

The victim never had an assigned class with defendant, but continued going to his

classroom “[t]o be with [her] friends.”

              4.     LAW ENFORCEMENT

       Eventually, the victim told her former math teacher about the alleged candy

incident. The victim talked to law enforcement about defendant’s behavior. When

speaking to a deputy, the victim said defendant kissed her shoulder during the candy

incident. At trial, the victim explained “shoulder” was the wrong word to use to

describe the placement of the kiss.

       The victim testified that defendant only kissed her once, on a single occasion,

i.e., the foregoing alleged “candy incident.” The prosecutor asked the victim if she

recalled telling an investigator that defendant kissed her twice on the forehead prior to

the candy incident and twice on the forehead after the candy incident. The victim

confirmed she did tell the investigator about four other kisses. The victim said the

forehead kisses did occur and estimated defendant kissed her a total of five times,

including the candy incident. Every time defendant kissed the victim, she felt

uncomfortable.

       When Ivette spoke to law enforcement, she said she saw defendant lean in to kiss

the victim’s cheek during the candy incident. At trial, Ivette clarified that she did not

see defendant lean in to kiss the victim’s chest, but she saw him “leaning towards her


                                             6
chest.” Ivette told a law enforcement officer she “never heard [defendant] say anything

to [the victim].” At trial, Ivette said she had overheard defendant offer to buy the victim

lunch and a yearbook, and tell the victim she was beautiful. At trial, Ivette admitted

lying to the law enforcement officer. Prior to the end of the school year, defendant

apologized to the victim for “making [her] feel uncomfortable.”

               5.     UNCHARGED PRIOR BAD ACTS

                      a)     Comments

       John Murray (Murray) was an assistant principal at the high school from 2007

through June 2010. In 2008, a female sophomore6 reported defendant made

inappropriate sexual comments. The comments allegedly occurred when the student

was alone with defendant “during after-school periods.” Murray spoke to the student,

the student’s father, and defendant. Defendant said the student had misunderstood his

use of sarcasm. Murray confirmed defendant had a sarcastic sense of humor, and that

sarcasm in general can be misunderstood. Murray advised defendant to (1) avoid using

sarcasm, and (2) avoid being alone with female students. Murray wrote a report about

the concern with defendant’s behavior, but kept the report for himself, it did not go into

defendant’s file.

       Trevor Painton (Painton) was an assistant principal at the high school from 2006

to 2012. In March or April 2010, a student, Christy, told Painton that defendant was



       6   A sophomore is typically 15 years old.



                                            7
making “[s]uggestive comments,” with sexual connotations. Christy was a student in

one of defendant’s classes and described three separate incidents.

      First, during a test, Christy jokingly said to defendant, “Come do my test for

me.” Defendant responded, “No, I won’t do your test, but I will do you.” The comment

made Christy feel uncomfortable. Second, when Christy was wearing a skirt, defendant

said, “[C]ome closer so I can lift your skirt up.” The comment caused Christy to feel

scared. Third, defendant instructed Christy to “spit [her] gum out.” Christy said she

was not chewing gum. Christy opened her mouth to show defendant. Defendant said,

“Oh, I bet I can find it.” The comment made Christy feel uncomfortable. Christy did

not think defendant was joking because defendant would lean in and whisper the

comments to her.

      Christy said another student, Leslie, had comments whispered to her as well.

Christy and Leslie were classmates, but not friends. Christy had seen defendant lean

toward Leslie and whisper to Leslie, but Christy could not hear what defendant said.

Painton spoke to Leslie, who confirmed defendant made inappropriate sexual

comments. On one occasion, defendant told Leslie, in a joking manner, “he liked [her]

back side better than [her] front side.” Leslie asked defendant what he meant, because

she thought he meant she was ugly. Defendant said it was “a compliment as he thought

[she] had a cute butt.” Defendant’s comment made Leslie feel uncomfortable. On

another occasion, when looking at photographs of Leslie’s friends on the cover of her

binder, defendant asked “when [she would be] able to print out some pictures for him to

put up on his wall.” Defendant also commented on whether Leslie’s friends “were cute


                                            8
or not.” Defendant whispered the comments to Leslie. The comments made Leslie feel

uncomfortable.

       Painton spoke to defendant. Painton advised defendant not to be alone in his

classroom with a student, although Christy and Leslie were in the classroom together

when defendant allegedly made the sexual comments. Painton also advised defendant

not to make comments that could be misinterpreted. Painton wrote a report about the

concern with defendant’s behavior, and placed the report in defendant’s file.

                     b)     Rape

       Angel is female. In early August 1994, Angel turned 15 years old. During that

month, Angel and her stepfather lived in defendant’s house in Corona, while Angel’s

mother and stepfather tried a trial separation. Angel and her stepfather lived at

defendant’s house for “a few months.” Defendant was Angel’s Sunday school teacher

at church. Angel’s stepfather worked until 11:00 p.m., so Angel was often home alone

with defendant. At home, defendant often called Angel to sit with him in “whatever

room he was in.” Defendant frequently wanted to talk to Angel, which Angel found

awkward. Angel described four incidents that occurred over the course of a three or

four week period.

       First, Angel walked by defendant while he was at the computer. Defendant

grabbed Angel by her waist, sat her down on his lap, and held her there. Angel “tensed

up” and waited for him to let her go. Second, when Angel was washing dishes,

defendant “came up behind” her, stood “really, really, really close,” so that she could




                                            9
feel his breath on the back of her neck and his lips brush against her neck. Defendant’s

actions caused Angel to feel scared.

       Third, Angel was laying on a bed, in the living room; Angel had fallen asleep

watching television. Defendant came into the room, got into the bed, “spoon[ed]”7

Angel, and placed her hand on his erect penis. The contact was skin-to-skin. Angel

remained quiet, kept her eyes closed, and did not move. Defendant “didn’t stay very

long” and then got up and walked away.

       Fourth, Angel was walking through a room, when defendant picked her up.

Defendant cradled Angel with one arm behind her back and one arm behind her knees.

Defendant took Angel to her bedroom. Defendant put Angel on her bed. Defendant

removed Angel’s underwear, and moved so he was on top of her. Defendant kissed

Angel’s breasts. Defendant tried to place his penis in Angel’s vagina, while Angel tried

pushing him off of her. Eventually, defendant penetrated Angel’s vagina with his penis.

The penetration was “[v]ery painful” to Angel. Defendant became frustrated because

his penis “wouldn’t fit” entirely in Angel’s vagina, only “a couple inches” could

penetrate. Angel continued trying to push defendant off of her, but did not say

anything. Angel hoped defendant would “walk away or just let [her] walk away.”

Angel felt the penetration lasted approximately 10 to 15 minutes. Angel was unsure if

defendant ejaculated. When the penetration ended, defendant told Angel “to get up and

go take a shower.”

       7  Angel was lying on her side, and defendant lay behind her, on his side, with
the front of his body against the back of her body.


                                           10
       Angel was “very scared” by defendant’s actions. Angel told a friend what

defendant had done. In an act of retribution, a few of Angel’s friends broke into

defendant’s house and “smash[ed] up his stuff.” Angel did not immediately speak to

law enforcement following the alleged rape, but did speak to officers approximately one

or two weeks later. Angel submitted to a sexual assault examination. After police

became involved, Angel moved into a female youth leader’s home. Defendant was

arrested for the alleged rape, but was not prosecuted.

       B.     DEFENSE’S EVIDENCE

       Both female and male students would skip their scheduled classes and spend the

class time in defendant’s classrooms. Areli was one of the girls who spent time with the

victim in defendant’s classroom. Areli recalled defendant threatening to call campus

security if the students skipping their classes did not leave, but he only followed through

once. On one occasion defendant said to a group of girls in the classroom, “[Y]ou’re

my daughter[s]. I’m going to take care of you.” Areli did not find the comment odd or

offensive, because defendant said it to a group. Areli saw defendant interact with the

victim, and the victim never appeared uncomfortable around defendant.

       Areli recalled the victim insisting defendant take them to a restaurant. Defendant

initially refused. Defendant then offered to pick up food and bring it back, but the

victim again insisted she wanted to leave campus. Defendant relented and took the

victim, Areli, and Elvira to In-N-Out. It appeared to Areli that defendant did not want

to take the three girls to the restaurant. Areli recalled defendant inviting the three girls

to go swimming at his house, so they could meet his family. Defendant told the girls


                                             11
that his wife and children were at his house. Areli did not feel like she was in danger on

the In-N-Out trip. Areli believed the victim was also comfortable on the In-N-Out trip,

because they were “goofing around in the back[seat] finishing [their] meal[s].” Elvira

also believed the victim was comfortable during the trip.

       In June 2010, the victim had a “huge reputation of lying.” Areli believed

defendant did not manipulate the victim, but the victim manipulated defendant. For

example, when the victim was late to class she would ask defendant for a pass.

Defendant told the victim, “I’m going to call security if you don’t leave.” The victim

would continue asking for a pass. The victim was “extremely flirtatious with

[defendant],” and the victim “love[d] attention.”

       Alexis was a student in defendant’s class during her freshman year, and a

teacher’s assistant (T.A.) for defendant during her junior year of high school. So, she

was in defendant’s class for two years. Alexis recalled male and female students

skipping their scheduled classes and going to defendant’s class. Alexis believed

defendant treated males and females the same. Defendant never said anything

inappropriate to Alexis nor made her feel awkward. The victim and her friends would

sit in front of Alexis, “a few feet across from [her],” when they were in defendant’s

classroom. Alexis never saw or heard defendant do anything inappropriate with other

female students.

       Jennifer was in defendant’s homeroom class for three years. Jennifer knew the

victim and the victim’s friends. Defendant commented on Jennifer’s toenails being

nicely painted and said the girls in the class were his daughters and he would take care


                                           12
of them; however, the comments did not make Jennifer uncomfortable. Jennifer

understood the “daughters/taking care” comments to mean defendant would help them

with their schoolwork. Defendant helped students with homework for their other

classes, such as history class.

       Jennifer saw the victim interact with defendant. The victim flirted with

defendant and went “to his class every day.” The victim always appeared to be

comfortable with defendant. In June 2010, the victim had the reputation of being a liar.

Jennifer “caught [the victim] in lies so many times.”

       Shianne was a student in defendant’s class, and was in a student club that he

coordinated. The club members went to a state competition in San Diego for four days.

The club members stayed in a hotel while in San Diego. Shianne also went to

defendant’s classroom during lunch “when it wasn’t nice” outside. Shianne never heard

defendant say anything inappropriate to students. During a club trip to Ontario, Shianne

was alone with defendant for one hour while waiting for her father to arrive. Defendant

did not say anything inappropriate to Shianne while they were alone.

       Kassandra went to defendant’s classroom with the victim and her friends when

skipping their scheduled classes. Defendant helped Kassandra with her history project

when she was in his classroom. Defendant never made Kassandra feel uncomfortable.

The victim never appeared uncomfortable around defendant. It appeared the victim was

trying to get extra attention from defendant. The victim told Kassandra defendant

purchased a yearbook on the victim’s behalf, but the victim was supposed to pay him




                                           13
back. The victim wanted defendant to purchase the yearbook because “he would get it

cheaper.”

      Kassandra heard defendant make the comment about the girls being his

daughters and taking care of them. Kassandra understood the comment to refer to

defendant helping the girls with schoolwork and giving Kassandra food when she did

not have food. Kassandra explained that she did not have the free breakfast program, so

defendant would sometimes give her muffins.

      Riverside County Sheriff’s Deputy Lewis (Lewis) was a school resource officer

for the high school in 2010. A teacher informed Painton, the assistant principal, about

the alleged candy incident, and Painton contacted Lewis. Lewis spoke to the victim on

June 16, 2010. The victim told Lewis defendant kissed her on the shoulder. The victim

did not mention Ivette witnessing the kiss. Lewis told the victim this was a “he said/she

said” case because there were not any witnesses. “[A]t some point,” the victim told

Lewis the kiss was on her chest. The victim told Lewis defendant had given her a

yearbook, because she could not afford one, but did not mention poems appearing in the

yearbook. The victim told Lewis she was uncomfortable around defendant. The victim

continued going to defendant’s classroom after the candy incident.

      C.     CHARGES, CLOSING ARGUMENT, AND VERDICTS

      During closing argument, the prosecutor asserted Count 1 consisted of the

alleged candy incident. The prosecutor argued defendant’s sexual intent in Count 1 was

proven by his comments to the victim, such as, “You can’t fix perfection; you’re not

like the other girls; you’re pretty.” Count 1 concerned an allegation of committing a


                                           14
lewd and lascivious act upon the body of a child who is 14 or 15 years old (Pen. Code, §

288, subd. (c)). The jury was unable to reach a verdict on Count 1, and the court

dismissed the charge. The jury was split 8-4, with the majority voting not guilty.

       The jury found defendant guilty on Count 2, which was annoying or molesting a

child under 18 years of age. (§ 647.6, subd. (a)(1).) The information reflected Count 2

was “a further and separate cause of action, being a different offense from but

connected in its commission with the charge set forth in [C]ount 1.” During closing

argument, the prosecutor asserted Count 2 consisted of “all of the conduct, the kisses,

the comments, all of that . . . .” When discussing defendant’s sexual intent, the

prosecutor asserted defendant’s comments, such as, “You are my daughters; I’m going

to take care of you,” proved the intent element.

                                      DISCUSSION

       A.     SUBSTANTIAL EVIDENCE

       Defendant contends his conviction is not supported by substantial evidence.

Specifically, defendant focuses on the first element of the offense, which is the conduct

that comprises the act.

       We review the record to determine whether any rational trier of fact could have

found the essential elements of the crime were satisfied beyond a reasonable doubt. We

view the record in the light most favorable to the prosecution; make all reasonable

inferences in favor of the prosecution; and resolve all evidentiary conflicts in favor of

the prosecution. We do not resolve credibility issues. “‘A reversal for insufficient

evidence “is unwarranted unless it appears ‘that upon no hypothesis [whatsoever] is


                                            15
there sufficient substantial evidence to support’” the jury’s verdict. [Citation.]’

[Citations.]” (People v. Mecano (2013) 214 Cal.App.4th 1061, 1068-1069.)

       “Section 647.6, subdivision (a) does not require a touching, ‘but does require

(1) conduct a “‘normal person would unhesitatingly be irritated by’” [citations], and

(2) conduct “‘motivated by an unnatural or abnormal sexual interest’” in the victim

[citations].’ The ‘words “annoy” and “molest” [in the statute] . . . are synonymous and

generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to

injure, another person. [Citations.] . . . . [¶] “Annoy” and “molest” ordinarily relate to

offenses against children, with a connotation of abnormal sexual motivation. The

forbidden annoyance or molestation is not concerned with the child’s state of mind, but

rather refers to the defendant’s objectionable acts that constitute the offense. [Citation.]

[¶] Accordingly, to determine whether the defendant’s conduct would unhesitatingly

irritate or disturb a normal person, we employ an objective test not dependent on

whether the child was in fact irritated or disturbed. [Citations.]’ [Citation.]” (People v.

Brandao (2012) 203 Cal.App.4th 436, 440-441 (Brandao), fn. omitted.)

       In regard to the first element—conduct a normal person would unhesitatingly be

irritated by—the victim testified that (1) defendant tried to hug the victim during

passing periods; (2) defendant kissed the victim four times on her forehead; and

(3) defendant pulled the victim to his desk and whispered poems in her ear. A

reasonable person in a student/teacher relationship would not expect romantic

interactions. Therefore, if a teacher kissed, whispered poetry, or attempted to hug the

student at a random moment like a passing period, a reasonable person would be


                                              16
disturbed by the teacher’s actions, because the actions are unexpected and unwanted, as

they fall outside the bounds of the typical student/teacher relationship. Accordingly,

based upon this evidence, the jury could reasonably conclude defendant committed an

act that was unhesitatingly irritating or annoying.

       Defendant contends there is not substantial evidence supporting the finding he

committed an irritating or disturbing act because “this was not a ‘course of conduct

crime’”; rather, the jury was instructed to select a particular act before convicting

defendant of violating section 647.6 (CALCRIM No. 3500 [Unanimity]). In our

discussion ante, we list three different possible acts that could have supported a finding

of disturbing or unhesitatingly irritating conduct. We are not concluding that all three

acts or the “course of conduct” are needed to support the conviction. We are concluding

that any one of the three acts, by itself, would be sufficient: (1) trying to hug the victim

during passing periods; (2) kissing the victim on her forehead; or (3) whispering poems

in the victim’s ear.

       Defendant contends there is not substantial evidence supporting the finding he

committed an irritating or disturbing act because (1) eight jurors implicitly found the

victim’s testimony to not be credible, based upon the result of Count 1; (2) the victim’s

testimony about the non-candy incident kisses was contradictory and/or inconsistent;

(3) the victim had a reputation for lying; and (4) the victim could not provide details

about the non-candy incident conduct.

       Defendant’s argument is unpersuasive because we cannot resolve issues of

credibility. (People v. Lee (2011) 51 Cal.4th 620, 632.) The jury was free to “accept or


                                             17
reject all or any part of [the victim’s] testimony unless the testimony [was] inherently

incredible.” (People v. Dilworth (1969) 274 Cal.App.2d 27, 34.) There is no reason for

concluding the victim’s testimony is inherently incredible. A jury could reasonably

conclude that kisses on the forehead are more believable than a kiss on the chest. Thus,

the jury could reject the alleged candy incident, but find the forehead kisses occurred.

The victim’s reputation for lying does not equate to all of her testimony being false.

The victim’s inconsistent statements and lack of details were explained by the lapse of

time between the incidents and trial. The victim explained that years had passed and

she had difficulty recalling the details of the different incidents. The victim’s

explanation is reasonable given the two-year period between the incidents and trial.

Since the victim’s testimony is not inherently improbable, we conclude it constitutes

substantial evidence.

       B.     UNCHARGED CRIMES EVIDENCE

              1.     PROCEDURAL HISTORY

       Prior to trial, the court said it had discussed motions with the attorneys in

chambers. On the record, the court remarked that one of the issues discussed in

chambers was whether evidence of the uncharged alleged rape should be admitted, and

a second issue was whether evidence of defendant’s uncharged alleged comments to

Christy and Leslie should be admitted.

       Defendant argued the rape evidence was not probative because defendant’s

crimes were not committed in seclusion; rather, there was a witness—Ivette allegedly

witnessed the candy incident. Defendant reasoned that prior crime evidence is usually


                                            18
allowed because there are not witnesses to sex crimes, but since this crime had a

witness, the prior crime evidence was not needed.

       Additionally, defendant asserted the rape evidence was “very remote,” because it

was 18 years old.8 Defendant argued that, due to the age of the alleged offense, it

would be difficult “to do any real investigation into the facts and circumstances

surrounding that.”

       Defendant argued that the rape evidence was unduly prejudicial, because rape

allegations tend to evoke emotional responses. Defendant asserted he was charged with

kissing the victim on her chest, above her breast, so evidence of rape in a trial about

kissing “would be just so prejudicial that it would be impossible for [defendant] to get a

fair trial.” In regard to the alleged rape and charged crimes involving the same plan or




       8  The rape allegedly occurred in 1994. The charged crime in the instant case
occurred in 2010. Accordingly, there was a 16-year gap between the charged crimes
and the uncharged rape. Defendant’s trial took place in 2012, so there was an 18-year
gap between the alleged rape and the trial. At oral argument in this court, the People
asserted the relevant amount of time for the “remoteness” factor is 16 years (uncharged
crime to charged crime calculation), rather than 18 years (uncharged crime to trial
calculation).
       Both the 16 year and 18 year time periods are relevant. The 16-year gap is
relevant to defendant’s propensity to commit the charged crimes because the closer in
time the crimes occur, the more probative the evidence is for proving defendant has the
propensity to commit sexual offenses. (People v. Branch (2001) 91 Cal.App.4th 274,
285.) However, the 18-year gap is relevant to the prejudice side of the analysis. For
example, it is relevant to defendant’s ability to defend himself at trial against an 18-
year-old allegation. (See People v. Abilez (2007) 41 Cal.4th 472, 501 [prior crime
occurred “more than 20 years before the trial”].) We will use the 18-year calculation for
the sake of consistency, since that was the calculation used when discussing the
remoteness factor in the trial court.


                                            19
motive (Evid. Code, § 1101, subd. (b)), defendant argued the crimes were dissimilar

because a kiss and rape are not comparable.

       In regard to the comments made to Christy and Leslie, defendant argued those

alleged crimes were not similar because they were “just comments . . . . And whether or

not they are even sexual in nature could be argued.” Defendant argued there was no

evidence of Christy or Leslie feeling as though defendant was making a sexual advance

to them. Defendant argued, “there is nothing similar about a kiss on the cheek [and] a

comment.”

       The prosecutor argued there is not a time limit on evidence of uncharged sexual

crimes (Evid. Code, § 1108), and therefore the 18 year age of the alleged rape evidence

was “not something that should even bear weight on the Court’s decision in this

instance.” The prosecutor argued the rape evidence was more probative than prejudicial

because Angel would not “just take the stand and say, yeah, he forcibly raped me”;

rather, Angel would provide “extensive testimony” about the “several acts prior to the

rape” in addition to the rape.

       In regard to similarity, the prosecutor argued the relationship and the acts prior to

the rape were similar to the charged offenses in the instant case. For example,

defendant was Angel’s Sunday school teacher, and he was a teacher at the victim’s high

school. Additionally, defendant “groomed” Angel by making comments to her and

touching her, similar to the victim. The prosecutor asserted the rape evidence could be

admitted under Evidence Code sections 1108 (prior sex crimes) or 1101, subdivision (b)

(common plan or motive).


                                            20
       In regard to Christy and Leslie, the prosecutor argued those uncharged comments

were similar to the instant case because defendant had a student/teacher relationship

with Christy, Leslie, and the victim. The prosecutor asserted the uncharged comments

were also similar because they made Christy and Leslie uncomfortable to the point of

reporting the comments, which could reflect the comments were sexual in nature.

       When issuing its ruling, the court explained its reasoning. The court said, “The

rape is probably more inflammatory. I mean, clearly it is more inflammatory. But at

the same time, I believe it might be more probative as well.” The court agreed that the

incidents involving Angel, prior to the rape, were similar to the charged crimes

involving the victim. The court then said, “I concur with the People that under the law,

the remoteness doesn’t make a difference.” The court then concluded the rape evidence

could be admitted.

       The trial court instructed the jury it could consider the rape evidence and

comments as proof defendant had a propensity to commit sexual offenses (Evid. Code,

§ 1108), and as proof of common intent, motive, or plan (Evid. Code, § 1101, subd. (b)).

              2.     DISCUSSION

       Defendant raises four sub-issues. First, defendant contends the trial court erred

by admitting the rape evidence under Evidence Code section 1101, subdivision (b),

because kissing and rape are not similar. Second, defendant contends the trial court

erred by admitting the rape evidence because the court incorrectly concluded the

remoteness of the offense was not relevant. Third, defendant asserts the trial court erred

by admitting all the uncharged offense evidence, because the evidence was more


                                            21
prejudicial than probative. Fourth, defendant asserts the trial court erred by admitting

all the uncharged offense evidence under Evidence Code section 1108 because it

violated due process.

                     a)     Evidence Code section 1101, subdivision (b)

       Defendant contends the trial court erred by admitting the rape evidence under

Evidence Code section 1101, subdivision (b), because kissing and rape are not similar.

Defendant also contends the trial court erred by admitting the evidence of comments

made to Christy and Leslie because kissing and comments are not similar.

       “Generally, the prosecution may not use a defendant’s prior criminal act as

evidence of a disposition to commit a charged criminal act. [Citation.] But evidence is

admissible ‘when relevant to prove some fact (such as motive, opportunity, intent,

preparation, plan, knowledge . . .) other than his or her disposition to commit such an

act.’ [Citation.]

       “‘To be admissible to show intent, “the prior conduct and the charged offense

need only be sufficiently similar to support the inference that defendant probably

harbored the same intent in each instance.”’ [Citations.] To be admissible to show a

common scheme or plan, a greater degree of similarity is required than to show intent,

and ‘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.]” (People v. Davis (2009) 46 Cal.4th 539, 602.)

       In Count 1, defendant was charged with a lewd or lascivious act. (§ 288, subd.

(c)(1).) The crime requires “the intent of arousing, appealing to, or gratifying the lust,


                                            22
passions, or sexual desires of that person or the child.” (§ 288, subds. (a)&(c)(1).)

Accordingly, the prosecution was required to prove intent. As a result, we address the

issue of whether the crimes are sufficiently similar to support the inference that

defendant probably harbored the same intent in each instance. (People v. Johnson

(2013) 221 Cal.App.4th 623, 635.)

       As set forth ante, “[t]he least degree of similarity (between the uncharged act and

the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence

of a similar result . . . tends (increasingly with each instance) to negative accident or

inadvertence or self-defense or good faith or other innocent mental state, and tends to

establish (provisionally, at least, though not certainly) the presence of the normal, i.e.,

criminal, intent accompanying such an act . . . .’ [Citation.]” (People v. Ewoldt (1994)

7 Cal.4th 380, 402.) We apply the abuse of discretion standard of review. (People v.

Abilez (2007) 41 Cal.4th 472, 500.)

       The victim in the instant case had a student/teacher relationship with defendant.

Angel had a student/teacher relationship with defendant through Sunday school. The

victim and Angel were both female and approximately 15 years old when the respective

incidents occurred or were alleged to have occurred. The victim described comments

defendant made, attempted hugs, kisses on the forehead, and a kiss on the chest. The

acts described by the victim reflect escalating sexual behavior. Angel described being

made to sit on defendant’s lap, defendant’s lips brushing against her neck, defendant

causing Angel to touch defendant’s penis, and defendant raping her. The incidents

involving Angel also reflect escalating sexual behavior. Given the student/teacher


                                             23
relationship similarity, the victims’ similar ages, and the escalating behavior described

by the victim and Angel, the acts were sufficiently similar to support the inference that

defendant probably harbored the same intent in each instance. Accordingly, we

conclude the trial court did not err because it was within the bounds of reason to find the

offenses sufficiently similar.

        Next, we address the comments made to Christy and Leslie. Defendant had a

student/teacher relationship with Christy and Leslie. Defendant also had a

student/teacher relationship with the victim. Christy was 15 years old when defendant

whispered comments to her. Leslie was 15 or 16 years old when defendant made

comments to her. The victim was also 15 years old when defendant made comments to

her. The comments to the victim, Christy, and Leslie were made during the same school

year.

        Defendant told Christy he would “do” her, told her he would “find” the gum in

her mouth, and said he would lift her skirt. Defendant complimented Leslie’s “cute

butt,” asked for photographs of her friends, and discussed whether her friends were

“cute.” Defendant told the victim she was “perfection,” offered to give her an A if she

took his class, and recited poetry to her. Christy, Leslie, and the victim said defendant

whispered his comments to them.

        The offenses are similar because the victim, Christy, and Leslie were

approximately the same age, shared student/teacher relationships with defendant, the

comments were made during the same school year, the comments were whispered, and

all the comments could be understood as having sexual connotations. Given these


                                            24
similarities, the prior offense evidence involving Christy and Leslie helps to support the

inference that defendant probably harbored the same intent in each instance.

Accordingly, we conclude the trial court did not err because the ruling was within the

bounds of reason.

       The trial court told the jury it could consider the uncharged misconduct for proof

of a common plan, as well as intent. A higher degree of similarity is needed for

common plan evidence than intent evidence. (People v. Davis, supra, 46 Cal.4th at p.

602.) Based upon the similarities discussed ante, we conclude it was within the bounds

of reason for the evidence to also be used as proof of a common plan. The multiple

commonalities of the ages, student/teacher relationships, sexual comments, and

escalating sexual behavior cause the uncharged offense evidence to meet the higher

level of similarity needed for proof of a common plan.

                     b)      Remoteness

       Defendant contends the trial court erred by admitting the rape evidence because

the court incorrectly concluded the remoteness of the offense was not relevant.

       When considering whether to admit evidence under Evidence Code section 1108,

a trial court must weigh the probative value of the evidence against the possible undue

prejudice that would arise from such evidence (Evid. Code, § 352). When engaging in

this weighing process, the trial court “must consider such factors as the [uncharged

offense’s] 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


                                             25
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. [Citations.]” (People v. Falsetta

(1999) 21 Cal.4th 903, 917, italics added (Falsetta).)

       The prosecutor submitted written motions in limine. In a written motion, the

prosecutor noted the alleged rape “occurred 18 years ago.” The prosecutor argued that

the rape was similar to the charged crimes, due to the victim’s and Angel’s ages,

defendant’s position of authority over both girls, and the gradual “grooming” behavior

defendant displayed with both girls. The prosecutor asserted Evidence Code section

1108 does not have a time limit for prior offenses “thus implying that conduct of any

remoteness should be admitted.”

       At the motion hearing, the prosecutor said, “Evidence Code Section 1108 doesn’t

have a ten-year time limit restriction as 1109 does. So I—as I argued in my written

motion as well, that is not something that should even bear weight on the Court’s

decision in this instance.” When the trial court issued its ruling, it said, “And I concur

with the People that under the law, the remoteness doesn’t make a difference.”

       A trial court “is presumed to have considered all of the relevant factors in the

absence of an affirmative record to the contrary.” (People v. Myers (1999) 69

Cal.App.4th 305, 310.) The trial court’s comments reflect the trial court understood

remoteness was a factor to be considered. For example, the trial court did not say

remoteness was irrelevant. Rather, the trial court said the 18 year age of the alleged


                                             26
rape “doesn’t make a difference.” The court’s comment can be interpreted as

concluding the remoteness of the crime had little impact on the weighing process in

light of the perceived factors favoring admission of the rape evidence, such as the

similarities between the alleged rape and the charged crimes. Since it has not been

affirmatively demonstrated that the trial court ignored the remoteness factor, we

conclude the trial court did not err.

                      c)     Balancing

       Defendant contends the trial court erred by admitting all the uncharged offense

evidence, because the evidence was more prejudicial than probative. (Evid. Code,

§ 352.) Specifically, defendant asserts the uncharged offense evidence was unduly

prejudicial because (1) the rape and comments were not similar to the charged offenses;

(2) the rape was remote in time; (3) none of the uncharged incidents resulted in a

conviction; (4) five witnesses testified about the uncharged incidents, which was over

half of the witnesses presented by the prosecution in the case; (5) jury instructions were

given concerning rape;9 and (6) closing arguments were given related to rape.


       9  Defendant raises an additional issue concerning the wording of the rape jury
instruction. In particular, defendant is concerned with the wording: “‘the People
presented evidence that the defendant committed the crimes of rape and annoying or
molesting a child that were not charged in this case.’” Defendant asserts the wording
gave the jury the impression that defendant did rape Angel and make inappropriate
comments to Christy and Leslie. Defendant has raised this alleged instructional error
within the Evidence Code section 352 balancing argument and the related harmless
error argument. We do not address the alleged instructional error as an independent
contention, due to it being combined with another topic. It does not appear defendant
intended this to be an independent issue. (Cal. Rules of Court, rule 8.204(a)(1)(B)
[separate headings].)


                                            27
       Evidence of uncharged misconduct may only be presented to a jury if the

probative value of the evidence outweighs the potential prejudice the evidence may

create. (Evid. Code, § 352; People v. Rocha (2013) 221 Cal.App.4th 1385, 1397.)

       As set forth ante, when engaging in the balancing process for Evidence Code

section 352, the trial court “must consider such factors as the [uncharged offense’s]

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. [Citations.]” (Falsetta, supra, 21 Cal.4th

at p. 917.)

       We apply the abuse of discretion standard when reviewing the trial court’s

ruling. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Under this standard, an

appellate court cannot substitute its judgment for the trial court’s judgment. A trial

court only abuses its discretion when “‘its decision is so irrational or arbitrary that no

reasonable person could agree with it.’ [Citations.]” (People v. Philpot (2004) 122

Cal.App.4th 893, 904-905.)

       We have explained ante, that three acts of uncharged misconduct were similar to

the charged offenses. We will not repeat that analysis here. However, the fourth act of

misconduct—the student complaint discussed by Murray—also involved a female


                                             28
student, who was approximately 15 years old, and comments with a sexual connotation.

Given the student/teacher relationship, the age of the anonymous student, and the sexual

comments, this incident is also similar to the charged offense of annoying or molesting

a minor because the victim also had a student/teacher relationship with defendant, was

15 years old, and suffered defendant making sexual comments to her. Accordingly, we

conclude, as discussed ante, that the uncharged misconduct was similar to the charged

offenses.

       Assuming that the remainder of defendant’s argument is correct (everything

other than the similarity component): the rape was remote in time, the uncharged

misconduct consisted only of allegations (not convictions), and the uncharged

misconduct consumed a significant portion of the trial, a reasonable person could still

conclude the probative value of the evidence outweighed these prejudice factors. In

particular, when the anonymous student complained to Murray, defendant explained the

student had misunderstood defendant’s use of sarcasm. When Assistant Principal

Painton handled Christy’s and Leslie’s complaints, Painton again advised defendant not

to make comments that could be misinterpreted.

       The uncharged comment evidence was probative because it helped the jury to

understand that the comments made to the victim about “perfection” and getting “an

automatic A” were not innocent or sarcastic comments that were simply misunderstood.

When taken in isolation, each comment can be explained away. However, when the

uncharged incidents are presented, it becomes more difficult to deny the sexual

motivation in making the comments. The prosecution was required to prove defendant


                                           29
was motivated by a sexual interest in children. (§ 647.6, subd. (a); Brandao, supra, 203

Cal.App.4th at pp. 440-441.) Therefore, the uncharged comment evidence had

probative value because the frequency of the charged and uncharged sexual comments

creates an improbability that the comments were innocent mistakes. (See People v.

Rocha, supra, 221 Cal.App.4th at pp. 1395-1396 [“the intermediate inference justifying

proof of intent by evidence of uncharged misconduct is ‘the objective improbability of

the accused’s innocent involvement in so many similar incidents’”].)

       The rape evidence, including the events prior to the rape, had probative value

because it provided proof that defendant was sexually interested in 15-year-old girls.

The comments were frequent and the girls testified that the comments made them

uncomfortable, but the sexual nature of the comments could be explained away by the

evidence that defendant had an “awkward” personality and was often sarcastic, as

testified to by Murray. The rape evidence reflected defendant had a sexual interest in

15-year-old girls, which helped to overcome the evidence of possible innocent

motivation behind the comments, attempted hugs, and kisses. Thus, the rape evidence

had probative value in relation to proving defendant (1) was motivated by a sexual

interest in children (§ 647.6, subd. (a)), and (2) acted “with the intent of arousing,

appealing to, or gratifying the lust, passions, or sexual desires of that person or the

child” (§ 288, subd. (a)&(c)(1)).

       Thus, we have assumed defendant’s prejudice arguments are correct (with the

exception of similarity) and we have concluded the evidence also had probative value.

A reasonable person could conclude the probative value of the evidence was stronger


                                             30
than the potential prejudicial effect because the pattern of defendant’s conduct was

strong proof of sexual intent and motivation, thus creating high probative value; while

the 18 year age of the rape allegation tended to blunt the inflammatory effects of the

allegation, e.g. the jury saw Angel as an adult, not a 15 year old, and presumably

defendant had been free of any sexual offense allegations for an 18-year period. In sum,

a reasonable person could weigh the probative value and prejudicial effect and conclude

the probative value outweighed the potential prejudicial effect. Accordingly, we

conclude the trial court did not abuse its discretion.

                     d)      Due Process

       Defendant asserts the trial court erred by admitting all the uncharged offense

evidence under Evidence Code section 1108 because it violated due process. Defendant

concedes the California Supreme Court, in Falsetta, concluded the admission of

propensity evidence pursuant to Evidence Code section 1108 does not violate due

process, because of the Evidence Code section 352 balancing process. (Falsetta, supra,

21 Cal.4th at pp. 917, 922.) In Falsetta, the California Supreme Court wrote that its

conclusion was “consistent with prior state and federal case law.” (Id. at p. 922.)

       Defendant asserts the United States Supreme Court has yet to issue an opinion on

the due process implications of propensity evidence admitted pursuant to Evidence

Code section 1108. We infer defendant is attempting to preserve this issue for federal

appellate review because we are bound by the California Supreme Court’s opinion in

Falsetta. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57




                                             31
Cal.2d 450, 455-456.) Since we are bound by the precedent of Falsetta, we conclude

the admission of propensity evidence did not violate defendant’s right of due process.

              e)     Harmless Error

       We have concluded the trial court did not err. However, if any error could be

found in admitting the uncharged rape evidence, we would find the error to be harmless.

We apply the Watson standard, determining if it is reasonably probable a result more

favorable to defendant would have been reached if the rape evidence had not been

admitted. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Jandres (2014) 226

Cal.App.4th 340, 357 [applying the Watson standard to an Evidence Code section 1108

error].)

       Angel, the alleged rape victim, had credibility issues. Angel said she was

“frazzled” and “very tired” while testifying. Angel admitted abusing

methamphetamines in the past. Angel blamed her first failure to appear to testify in the

case on missing her flight due to her seven-year-old child taking and hiding her driver’s

license.10 Angel blamed her second failure to appear to testify in the case on the airline

and/or travel agent. At the end of the cross-examination, defendant’s trial counsel asked

Angel if she was “under the influence of anything.” Angel denied being under the

influence. Defendant’s trial counsel described Angel as “stammer[ing]” and “mumbling

to herself” on the witness stand.



       10 Angel twice failed to appear as scheduled to testify in this case. The trial
court issued a bench warrant for Angel’s arrest, and she appeared the following day.


                                            32
          The victim of the charged offense also had credibility issues. For example, there

was testimony that, in June 2010, the victim had a “huge reputation of lying.” As set

forth ante, the jury was unable to reach a verdict on Count 1, an allegation of

committing a lewd and lascivious act upon the body of a child who is 14 or 15 years

old. (Former Pen. Code, § 288, subd. (c).) The trial court declared a mistrial as to

Count 1 and dismissed the charge in the interests of justice. (Pen. Code, § 1385.) The

jury was split 8-4, with the majority voting not guilty. Defendant was found guilty only

of the misdemeanor offense of annoying or molesting a child under 18 years of age.

(§ 647.6, subd. (a)(1).)

          It appears from the verdict and mistrial that the uncharged rape evidence had

little impact on the jury, since the jury did not find defendant guilty of the felony. It can

be inferred from the jury finding defendant guilty only on the misdemeanor that the jury

likely disregarded Angel’s testimony, and credited the repeated testimonies regarding

defendant making inappropriate comments. The jury likely credited the testimony of

the prosecution’s witnesses regarding the alleged inappropriate comments because

defense witnesses corroborated the testimony. Defense witnesses Areli, Jennifer, and

Kassandra recalled defendant telling a group of girls that they were his daughters and he

would take care of them. Jennifer also recalled defendant complimenting her toenail

polish.

          When the prosecutor argued that the jury should find defendant guilty of making

inappropriate comments, the prosecutor primarily used the comments themselves to




                                              33
support a finding that defendant was motivated by an unnatural or abnormal sexual

interest in the victim.

       The prosecutor argued, “The defendant was motivated by an unnatural or sexual

interest in the child. You are my daughters; I’m going to take care of you. As hard as

defense [counsel] tried to spin it that he said it, you know, in this protective manner and

gave them food, you even heard Kassandra say, oh, well, he gave me food. I don’t

know about anyone else. [¶] And these [school] barbecues and the lunch that was

thrown with another teacher for all of the students, he didn’t say then, You are my

daughters. No. It was to this specific group of girls, these 15-year-olds that excited

him, that he had a sexual interest in.

       “The pattern of the 15-year-olds. Again, this is where you get to look at his other

conduct. And who am I talking about again? I’m talking about Christy and Leslie. I

did it wrong. Sorry. Angel, Christy, Leslie, and of course [the victim]. A child under

18 years old. Again, [the victim] is—was 15 at the time.” The rape evidence was not

the primary evidence supporting a finding of sexual intent. The prosecutor mentioned

Angel but did not belabor the rape evidence in proving the motivation factor.

       Accordingly, based upon the jury not finding defendant guilty of the felony, the

inference that the jury found the rape evidence lacking credibility, and the prosecutor

relying on other evidence in addition to the rape to support the motivation finding for

the misdemeanor, we conclude that it is not reasonably probable a result more favorable

to defendant would have been reached if the rape evidence had not been admitted.




                                            34
       C.     HEARSAY

              1.     PROCEDURAL HISTORY

       Prior to trial, defendant raised a hearsay objection to Murray’s testimony.

Defendant objected to Murray testifying about a complaint made by an anonymous

student. The prosecutor said she would not ask Murray about the specifics of the

student’s allegations. Instead, she would “ask if allegations were brought to his

attention and what he did as a result of it and how he counseled the defendant.” The

prosecutor asserted the testimony was relevant to the element of intent. The trial court

said it would “probably need a little more detailed information,” and would need to

consider “the state of the evidence” at the point Murray is called as a witness, before

issuing a ruling.

       During trial, outside the presence of the jury, the prosecutor offered to “make the

record [she] made in chambers.” The prosecutor made an offer of proof concerning

Murray. The prosecutor explained it came to “Murray’s attention that a student had a

complaint about the defendant regarding sexual comments being made toward her,”

Murray investigated the complaint, and he counseled defendant.

       The court explained that since the student who complained to Murray was not

testifying at trial, the statements the student made to Murray would not be admissible.

The prosecutor agreed and said she did not plan to ask Murray about the student’s

statement. The court said, “So I think it would just be that something came to his

attention and he felt the need to counsel with the defendant.”




                                            35
       The prosecutor argued that defendant’s statement about the comments being

sarcastic was an admission that he made the comments. Defendant asserted it was

Murray, not defendant, who first suggested the student misunderstood defendant’s use

of sarcasm. The court ruled Murray could be examined and cross-examined about who

first suggested the comments were sarcastic.

       During Murray’s testimony, the following exchange took place:

       Prosecutor: “What was the inappropriate conduct that was brought to your

attention? And before you answer, not the exact words but the—in general, what was

the conduct?

       “[Murray:] The complaint came from a student, and she mentioned that she felt

uncomfortable about some of the comments that were made to her after school. It was

during after-school periods of time. And she had been in the classroom by herself with

[defendant] and said there was some sexually—sexual comments—or sexual in nature.

And I believe they were in the lines of—

       “The Court[:] I would cut you off at that point.

       “[Prosecutor:] That’s fine.

       “[Murray:] Sorry.”

       Later in Murray’s testimony, he explained, “When I presented the allegation to

[defendant], he mentioned that sometimes students misconstrue his use of sarcasm and

they can read some things into what is said that he does not intend.” As a result of that

discussion, Murray counseled defendant to (1) avoid being alone with female students,

and (2) avoid using sarcasm.


                                            36
              2.     ANALYSIS

       Defendant asserts the trial court erred by admitting Murray’s hearsay testimony

regarding the unidentified student’s complaint.

       “‘Hearsay evidence’ is evidence of a statement that was made other than by a

witness while testifying at the hearing and that is offered to prove the truth of the matter

stated.” (Evid. Code, § 1200.) The adoptive admission rule is an exception to the

hearsay rule. The adoptive admission rule provides, “Evidence of a statement offered

against a party is not made inadmissible by the hearsay rule if the statement is one of

which the party, with knowledge of the content thereof, has by words or other conduct

manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.)

       “For the adoptive admission exception to the hearsay rule to apply, no ‘direct

accusation in so many words’ is necessary. [Citation.] Rather, it is enough that the

evidence showed that the defendant participated in a private conversation in which the

crime was discussed and the circumstances offered him the opportunity to deny

responsibility or otherwise dissociate himself from the crime, but that he did not do so.

[Citation.]” (People v. Davis (2005) 36 Cal.4th 510, 539.)

       “In determining whether a statement is admissible as an adoptive admission, a

trial court must first decide whether there is evidence sufficient to sustain a finding that:

(a) the defendant heard and understood the statement under circumstances that normally

would call for a response; and (b) by words or conduct, the defendant adopted the

statement as true. [Citations.]” (People v. Davis, supra, 36 Cal.4th at p. 535.)




                                             37
       “We apply the abuse of discretion standard in reviewing the trial court’s

determination to admit or exclude hearsay evidence. That standard applies to questions

about the existence of the elements necessary to satisfy the hearsay exception.

[Citations.]” (People v. Pirwani (2004) 119 Cal.App.4th 770, 787.)

       Murray explained that when he spoke to defendant, Murray informed defendant

“it would likely be a summary of the conference,” which means Murray “go[es] through

and outline[s] the concerns that were presented by the student or by whoever it was, and

then as some point [Murray] would also probably provide some recommendations as to

remedy the situation,” then a record of the conversation would be put “on paper.”

Murray testified that he “presented the allegation to [defendant], he mentioned that

sometimes students misconstrue his use of sarcasm and they can read some things into

what is said that he does not intend.”

       We begin with the first factor—the defendant heard and understood the statement

under circumstances that normally would call for a response. It can reasonably be

concluded defendant heard and understood the accusation presented by Murray because

defendant responded to it. It can also be reasonably found that the circumstances would

normally call for a response because (1) defendant responded to Murray, and (2) Murray

explained to defendant that the conversation was part of the “conference summary”

procedure, which would result in a record of their interaction. Thus, defendant could

reasonably be expected to respond to the allegations against him. Accordingly, the trial

court could reasonably conclude defendant heard and understood the statement under

circumstances that would normally call for a response.


                                           38
       Next, we address whether the trial court reasonably found by words or conduct,

the defendant adopted the statement as true. “The statute contemplates either explicit

acceptance of another’s statement or acquiescence in its truth by silence or equivocal or

evasive conduct.” (People v. Combs (2004) 34 Cal.4th 821, 843.) Defendant responded

to the accusation by explaining, “sometimes students misconstrue his use of sarcasm

and they can read some things into what is said that he does not intend.” Defendant did

not deny making the statements; rather, defendant explained only that he had an

innocent state of mind. Defendant’s response could reasonably be found to be an

adoption of the statements, in the sense that he admitted having made the statements to

the student, and agreed the student complained; he only disagreed on his state of mind

in making the statements. Accordingly, since the trial court could reasonably find both

factors are supported by the record, we conclude the trial court did not err.

       Defendant asserts the adoptive admission exception does not apply because

“[n]othing established [defendant] had knowledge of the student’s accusation; Murray

only stated [defendant] was told there an allegation.” Contrary to defendant’s assertion,

Murray did not say he told defendant “an allegation,” he said he “presented the

allegation.” (Italics added.) Murray explained that as part of the summary conference

procedure he “go[es] through and outline[s] the concerns that were presented by the

student,” and then makes recommendations to the accuser. Thus, part of the

conversation was presenting the student’s allegation to defendant. In this case, there

was only one allegation, i.e., “the allegation.” As a result, it can reasonably be found

that defendant heard and understood the allegation against him.


                                            39
       Within defendant’ harmless error argument, he discusses how admitting evidence

of uncharged misconduct alleged by an unidentified student violated his right of due

process. Since this due process argument was combined with the harmless error

argument, we choose to not address it because it appears it was meant more as support

for the prejudice theory; it was not intended to be an independent issue. (Cal. Rules of

Court, rule 8.204(a)(1)(B) [separate headings].)

       D.     PROSECUTORIAL MISCONDUCT

              1.     PROCEDURAL HISTORY

       Defendant raises issues with three different aspects of the prosecutor’s closing

argument. The first issue concerns the prosecutor’s references to statements a juror

made during voir dire. The prosecutor said, “I have no doubt that [the] defense is going

to get up here and make a big deal about cheek versus forehead. But hopefully

everyone here remembers [Juror No. 12’s] New Year’s Eve party. Because it didn’t

matter what songs were playing in the background; it doesn’t mean [Juror No. 12]

didn’t have a party going on. It doesn’t mean that he didn’t kiss her four other times.”

       The second issue concerns “community” arguments made by the prosecutor. The

prosecutor said, “Like I started my argument, this case is about trust and confidence in

our teachers. It’s about teachers having boundaries. It’s about protecting our students,

protecting our children. And that’s what I’m asking you to do today. Protect our

children and our community by finding the defendant guilty as charged.”




                                           40
       The third issue is related to the prosecutor discussing Angel. The prosecutor

said, “And quite honestly, ladies and gentlemen, [Angel] was victimized all over again

yesterday when she had to relive that pain.”

              2.      ANALYSIS

                      a)     Contention

       Defendant contends the prosecutor committed misconduct (1) when referencing

Juror No. 12; (2) when urging the jury to protect our community; and (3) when

discussing Angel being victimized “again” by testifying.

                      b)     Forfeiture and Ineffective Assistant of Counsel

       The People contend defendant forfeited his prosecutorial misconduct contention

by failing to object in the trial court. Defendant asserts the contention was not forfeited

because an admonition by the trial court would not have cured the harm. (People v.

Arias (1996) 13 Cal.4th 92, 159 [prosecutorial misconduct is not forfeited if “an

objection would have been futile or an admonition ineffective].) If the contention is

forfeited due to a lack of objections then, in the alternative, defendant asserts his trial

counsel was ineffective for failing to object to the alleged misconduct. We choose to

address the merits of the misconduct contention, rather than address the waiver and

ineffective assistance of counsel issues.

                      c)     Law

       “‘A prosecutor’s rude and intemperate behavior violates the federal Constitution

when it comprises a pattern of conduct “so egregious that it infects the trial with such

unfairness as to make the conviction a denial of due process.” [Citation.] But conduct


                                              41
by a prosecutor that does not render a criminal trial fundamentally unfair is

prosecutorial misconduct under state law only if it involves “‘the use of deceptive or

reprehensible methods to attempt to persuade either the court or the jury.’”

[Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)

                        d)   Juror No. 12

       Defendant contends it was misconduct for the prosecutor to (1) address a

particular juror, and (2) argue facts not in evidence for purposes of establishing the

victim’s credibility.

                             (1)   Individual Juror

       Prosecutors should address the jury as a body, rather than addressing individual

jurors. (People v. Wein (1958) 50 Cal.2d 383, 395-396 [partially abrogated by statute,

on a different point]; People v. Sawyer (1967) 256 Cal.App.2d 66, 78.) In the instant

case, the prosecutor discussed voir dire statements made by Juror No. 12. The

prosecutor did not address Juror No. 12 directly. The prosecutor spoke to the jury as a

body about Juror No. 12’s statements. Accordingly, we conclude the prosecutor did not

commit misconduct, because the prosecutor did not address an individual juror.

                             (2)   Facts Not in Evidence

       “‘“[A] prosecutor is given wide latitude during argument. The argument may be

vigorous as long as it amounts to fair comment on the evidence, which can include

reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear

that counsel during summation may state matters not in evidence, but which are




                                            42
common knowledge or are illustrations drawn from common experience, history or

literature.” [Citation.]’” (People v. Brown (2004) 33 Cal.4th 382, 399-400.)

       The prosecutor’s comments about Juror No. 12 recalling songs are not

completely clear from the record; however, it can be inferred Juror No. 12 made a

statement during voir dire about being able to recall music playing at a New Year’s Eve

party, but being unable to recall exactly what songs were playing. The prosecutor’s

comments about Juror No. 12’s statements were meant to evoke the common experience

of forgetting details over time. The prosecutor was using the statement as an illustration

of that common experience. The prosecutor could have easily removed “Juror No. 12”

from the statement and used the same example. For instance: “The victim forgot some

details of the incidents. People often forget details over time. It is common to recall

listening to music at a party, but it is also common to forget the exact songs one heard

when two years have passed since the date of the party.” The point here is that the

prosecutor was illustrating a common experience. The prosecutor did not argue facts

not in evidence. Accordingly, we conclude the prosecutor did not commit misconduct.

                     e)     Community

       Defendant contends the prosecutor committed misconduct by asking the jury to

protect the community and our children.

       Defendant relies generally on the case law establishing that “a prosecutor

commits misconduct in making comments calculated to arouse passion or prejudice.”

(People v. Bradford (1997) 15 Cal.4th 1229, 1379.) More specifically, defendant relies

on federal case law explaining that “[a] prosecutor may not urge jurors to convict a


                                            43
criminal defendant in order to protect community values, preserve civil order, or deter

future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant

will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors

may be persuaded by such appeals to believe that, by convicting a defendant, they will

assist in the solution of some pressing social problem. The amelioration of society’s

woes is far too heavy a burden for the individual criminal defendant to bear.” (U.S. v.

Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441, fns. omitted; see also U.S. v.

Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149 [quoting Monaghan].)

       For reference, the prosecutor said, “Like I started my argument, this case is about

trust and confidence in our teachers. It’s about teachers having boundaries. It’s about

protecting our students, protecting our children. And that’s what I’m asking you to do

today. Protect our children and our community by finding the defendant guilty as

charged.”

       We begin with the “boundaries” portion of the argument. As set forth ante, to

prove a violation of section 647.6, subdivision (a), there must be proof defendant’s

conduct would unhesitatingly irritate a normal person. Whether the victim was irritated

or disturbed is not the issue—it is an objective examination. (Brandao, supra, 203

Cal.App.4th at pp. 440-441.)

       The prosecutor’s argument reflects the idea that defendant breached the

community’s standards or “boundaries.” By violating these norms, it can be established

that a reasonable person would be disturbed or unhesitatingly irritated by defendant’s

behavior. In other words, it does not appear the prosecutor’s “boundaries” statements


                                           44
were calculated to inflame the passions or prejudices of the jury. Instead, the prosecutor

was making a point about the violation of community “boundaries,” which would cause

a person to be disturbed or irritated.

       We now turn to the “protection” portion of the argument. The prosecutor’s

comments about protecting the community were directed at defendant’s misconduct.

The prosecutor did not identify a particular social problem that defendant’s conviction

would solve, and did not state defendant was bound to commit future crimes. The gist

of the prosecutor’s “protection” statements was that, by returning a guilty verdict, the

jury could indicate its view that defendant’s conduct was a violation of the community’s

(state’s) law. In sum, we conclude the prosecutor’s arguments were not calculated to

arouse the passions and prejudices of the jury.

                      f)     Victimized

                             (1)    Contention

       Defendant contends the prosecutor committed misconduct by arguing Angel was

victimized “again” by testifying because the prosecutor appealed to the jury’s sympathy

and vouched for Angel’s credibility.

                             (2)    Law

       “‘“[A]n appeal for sympathy for the victim is out of place during an objective

determination of guilt.”’ [Citations.]” (People v. Vance (2010) 188 Cal.App.4th 1182,

1192.) Additionally, a “prosecutor is generally precluded from vouching for the

credibility of her witnesses.” (People v. Anderson (1990) 52 Cal.3d 453, 479.)

However, arguments made in response to defense counsel’s arguments are not


                                            45
misconduct. Our Supreme Court held, “[E]ven otherwise prejudicial prosecutorial

argument, when made within proper limits in rebuttal to arguments of defense counsel,

do not constitute misconduct. [Citation.]” (People v. McDaniel (1976) 16 Cal.3d 156,

177.)

                            (3)    Defense’s Argument

        During defense counsel’s closing argument, he attacked Angel’s credibility.

Defense counsel (Lapine) directed the jury to the instruction permitting the jury to

consider a witness’s behavior on the stand when determining the witness’s credibility.

Lapine asserted Angel’s behavior caused her to not be credible. Lapine argued, “I asked

her if she was under the influence of methamphetamine because, frankly, that is what it

appeared like. And then she stammered for a couple minutes. Well, no. It’s been a

year since I used meth. Really? After just about every answer she gave, she stammered

and was mumbling to herself. Was she a credible witness?

                            (4)    Prosecutor’s Rebuttal Argument

        During the prosecutor’s rebuttal argument, the prosecutor said, “[Angel] was

victimized all over again yesterday when she had to relive that pain. She was very

human on that stand. She was thinking out loud, trying to remember. . . . [¶] And the

mumbling to herself, again, she was thinking out loud. She tried to pour the water. And

I don’t know if any of you heard, but I did. She said, [“]How does this thing work,[”] as

she was fiddling with it. That doesn’t make her crazy. That doesn’t make her on

methamphetamine, which, by the way, she didn’t stutter. She flat out told the jury, no, I

haven’t done methamphetamine in a year. There was no stuttering. Mr. Lapine just


                                           46
wants you to believe there was because he doesn’t want you to believe a word she said

because she was so credible.”

                            (5)    Credibility

       The prosecutor’s remarks did not vouch for the victim’s credibility. The

prosecutor argued Angel was a credible witness, but did not state that evidence outside

the record, such as the prosecutor’s beliefs, indicated Angel was being truthful. The

prosecutor relied on Angel’s testimony and conduct to assert Angel was being honest.

For example, the prosecutor explained why Angel appeared to be muttering and asserted

Angel did not stutter, in order to establish that Angel was not under the influence of

methamphetamine. Accordingly, we conclude the prosecutor did not improperly vouch

for Angel’s credibility.

       Defendant asserts that by arguing Angel was “victimized all over again,” the

prosecutor vouched for the truth of Angel’s rape allegation. “‘[S]o long as a

prosecutor’s assurances regarding the apparent honesty or reliability of prosecution

witnesses are based on the “facts of [the] record and the inferences reasonably drawn

therefrom, rather than any purported personal knowledge or belief,” her comments

cannot be characterized as improper vouching.’ [Citations.]” (People v. Bonilla (2007)

41 Cal.4th 313, 337.) Angel testified that she was raped by defendant. The

prosecutor’s comments are referencing Angel as a victim based upon Angel’s

testimony. The argument is not referencing outside personal knowledge of Angel’s

veracity. Accordingly, we conclude the prosecutor did not commit misconduct.




                                            47
                             (6)   Sympathy

       We now turn to the sympathy issue. When the prosecutor argued that Angel was

“victimized all over again,” the prosecutor’s point was that there was a reason for

Angel’s muttering and fumbling with the water pitcher. The prosecutor was not

evoking the jury’s sympathy for Angel. Rather, the prosecutor was attempting to

respond to Lapine’s argument about Angel’s credibility. The prosecutor wanted the

jury to see Angel as a person who was struggling with the pain of recalling her rape, as

opposed to struggling with the effects of methamphetamine. The argument was about

credibility, not sympathy. Accordingly, we conclude the prosecutor did not commit

misconduct by appealing to the jurors’ sympathy; the prosecutor was merely responding

to the defense’s argument.

       E.     INEFFECTIVE ASSISTANCE OF COUNSEL

              1.     CONTENTION

       Defendant contends his trial counsel rendered ineffective assistance by failing to

request an instruction that evidence of defendant’s good character was sufficient, by

itself, to raise a reasonable doubt about defendant’s guilt (CALCRIM No. 350).

              2.     INEFFECTIVE ASSISTANCE OF COUNSEL LAW

       “‘In order to establish a claim of ineffective assistance of counsel, defendant

bears the burden of demonstrating, first, that counsel’s performance was deficient

because it “fell below an objective standard of reasonableness [¶] . . . under prevailing

professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall

presume that “counsel’s performance fell within the wide range of professional


                                            48
competence and that counsel’s actions and inactions can be explained as a matter of

sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or

failed to act in the manner challenged,” an appellate claim of ineffective assistance of

counsel must be rejected “unless counsel was asked for an explanation and failed to

provide one, or unless there simply could be no satisfactory explanation.” [Citations.]

If a defendant meets the burden of establishing that counsel’s performance was

deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that

is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez

(2008) 42 Cal.4th 960, 966.)

              3.     JURY INSTRUCTION

       CALCRIM No. 350 provides: “You have heard character testimony that the

defendant (is a __________ <insert character trait relevant to crime[s] committed>

person/ [or] has a good reputation for _____________ <insert character trait relevant

to crime[s] committed> in the community where (he/she) lives or works). [¶] Evidence

of the defendant’s character for _____________ <insert character trait relevant to

crime[s] committed> can by itself create a reasonable doubt [whether the defendant

committed _____________ <insert name[s]of alleged offense[s] and count[s], e.g.

battery, as charged in Count 1>]. However, evidence of the defendant’s good character

may be countered by evidence of (his/her) bad character for the same trait. You must

decide the meaning and importance of the character evidence. [¶] [If the defendant’s

character for certain traits has not been discussed among those who know (him/her), you


                                             49
may assume that (his/her) character for those traits is good.] [¶] You may take that

testimony into consideration along with all the other evidence in deciding whether the

People have proved that the defendant is guilty beyond a reasonable doubt.”

             4.     CHARACTER LAW

      A defendant’s character or trait of his character may be testified to “in the form

of an opinion” or evidence may be given “of his reputation.” (Evid. Code, § 1102.)

Evidence of specific acts is not character evidence. (People v. Wagner (1975) 13 Cal.3d

612, 618-619.)

             5.     ANALYSIS

      In the instant case, defendant’s witnesses testified about specific acts. Alexis

testified she was defendant’s student and he did not cause her to feel uncomfortable.

Jennifer said defendant’s comments to her about her toenails and being his daughter did

not make her feel uncomfortable. Shianne said she traveled with defendant for a student

club and sometimes spent lunch periods in his classroom. Shianne never heard

defendant say anything inappropriate and never saw him do anything inappropriate.

Kassandra testified that defendant never made her feel uncomfortable when she went to

his classroom. Areli heard defendant’s “daughters/taking care” comment and it did not

make her uncomfortable.

      The witnesses did not give their opinions about defendant’s character or testify

about defendant’s reputation in the community. Rather, the witnesses testified about

their specific experiences with defendant. Therefore, the witnesses did not offer

character evidence because evidence of specific acts is not character evidence. (People


                                           50
v. Wagner, supra, 13 Cal.3d at pp. 618-619.) Accordingly, defendant’s trial counsel

provided competent assistance by not requesting the good character instruction, since

there was not good character evidence. In sum, trial counsel did not render ineffective

assistance.

       F.     CUMULATIVE ERROR

       Defendant contends the cumulative prejudicial effect of the foregoing alleged

errors requires reversal of his conviction. We have found no errors, which includes no

prejudicial errors. Since there is nothing to cumulate, we are not persuaded by

defendant’s argument. (See People v. Hovarter (2008) 44 Cal.4th 983, 1030 [rejecting

a cumulative effect argument where no errors were found].)

       G.     EQUAL PROTECTION

              1.     PROCEDURAL HISTORY

       Defendant filed a motion in the trial court seeking a declaration that a violation

of section 647.6 is not a crime requiring mandatory registration as a sexual offender.

Defendant’s argument was based upon principles of equal protection. The prosecutor

opposed the motion. The trial court denied the motion. Additionally, the court said that

if the crime required discretionary (as opposed to mandatory) registration, then the trial

court, in its discretion, would order defendant to register as a sexual offender, due to

defendant taking advantage of a position of trust when committing the offense, i.e., the

student/teacher relationship.




                                            51
              2.     ANALYSIS

       Defendant contends mandatory sexual offender registration for violating section

647.6 violates principles of equal protection. Defendant asserts a person convicted of

violating section 647.6 is similarly situated to a person convicted of sexual crimes in

which the victim is a willing party. The voluntary crimes do not require mandatory

sexual offender registration. Defendant asserts “[t]here is no plausible reason” to have

mandatory registration requirements for a violation of section 647.6, but discretionary

registration requirements for defendants convicted of voluntary sexual intercourse or

oral copulation with a minor.

       In People v. Hofsheier (2006) 37 Cal.4th 1185, 1207 (Hofsheier), our Supreme

Court concluded principles of equal protection were violated by laws requiring

mandatory registration for defendants convicted of voluntary oral copulation with a

minor who is 16 or 17 years old, but not imposing mandatory registration requirements

for defendants convicted of voluntary intercourse with a minor who is 16 or 17 years

old. In its reasoning, the Supreme Court explained, there was no rational basis for

concluding people convicted of voluntary oral copulation were more likely to reoffend

(thus requiring mandatory registration), than those convicted of voluntary sexual

intercourse. Since there was no plausible reason for the disparate treatment, the court

concluded the two groups must be treated the same. (Id. at pp. 1204, 1207.) The

Supreme Court noted the Legislature could impose mandatory registration requirements

for those convicted of voluntary intercourse, so the two groups would be treated

equally. (Id. at p. 1207.)


                                            52
       In Brandao, supra, 203 Cal.App.4th at page 442, the defendant raised the same

equal protection issue being raised in the instant case. The Brandao court noted

Hofsheier had been extended by other appellate cases to include a variety of voluntary

sexual activities between adults and minors of different ages and age differences. For

example, it was extended to include voluntary sodomy with a 17 year old and voluntary

digital penetration of a 13 year old. (Brandao, at pp. 443-444.) However, appellate

courts had declined to extend Hofsheier in cases where (1) the offense involved a victim

of a young age and/or the victim and the defendant were separated in age by 10 years or

more; and (2) the offense involved a different specific intent than the Hofsheier-type

offenses. (Brandao, at p. 444.)

       The Brandao defendant argued he was similarly situated to the Hofsheier-type of

defendants. (Brandao, supra, 203 Cal.App.4th at p. 445.) The defendant asserted a

violation of section 647.6 is similar to a voluntary sex offense because section 647.6

does not require the defendant’s conduct be forcible, it does not require touching, it

requires only that the victim be under 18 years old, does not require a 10-year age

difference, and is a general intent offense. The defendant conceded section 647.6

required the defendant to be motivated by a sexual interest in children, but argued this

element did not undermine the similarities between section 647.6 defendants and the

Hofsheier-type (voluntary offense) of defendants. (Brandao, at p. 445.)

       The Brandao court reasoned that section 647.6 defendants were different than the

Hofsheier (voluntary offense) defendants because section 647.6 requires conduct that is

disturbing or unhesitatingly irritating to a reasonable person, while the voluntary


                                            53
offenses involve “conduct between two willing parties.” (Brandao, supra, 203

Cal.App.4th at p. 445.) The appellate court also concluded the motivation requirement

of section 647.6 set it apart from the Hofsheier offenses, in that a section 647.6

defendant must be “motivated by an unnatural or abnormal sexual interest in children.”

(Brandao, at pp. 445-446.) In regard to age, the appellate court reasoned section 647.6

“encompasses the youngest of minors as well as perpetrators who are much older than

their victims,” which also differentiated the offense from the Hofsheier crimes.

(Brandao, at p. 446.)

       Due to the foregoing differences, the Brandao court concluded, “section 647.6,

subdivision (a), simply is not comparable to the voluntary sex offenses at issue in

Hofsheier-type cases, in which the only difference between the crimes was the nature of

the sexual act and, in some cases, the ages of the defendant and the victim.” (Brandao,

supra, 203 Cal.App.4th at p. 446, fn. omitted.) The appellate court held defendants

convicted of violating section 647.6 are not similarly situated to those convicted of

Hofsheier-type offenses, and therefore the different treatment was rational and not a

violation of equal protection. (Brandao, at p. 448.)

       We agree with Brandao’s reasoning and conclusion. Accordingly, we conclude

mandatory sexual offender registration for a violation of section 647.6 does not violate

equal protection.

       Defendant asserts Brandao was wrongly decided because section 647.6 offenses

could include voluntary conduct between two willing parties. Defendant reasons that

section 647.6 requires a reasonable person to be disturbed or irritated by a defendant’s


                                            54
behavior, so arguably, the minor could be a willing participant (the minor does not need

to be disturbed or irritated), and the minor could be 16 or 17 years old. Further, in

regard to the sexual motivation aspect of section 647.6, defendant asserts case law

reflects “there can be no normal sexual interest in any child.” (People v. Shaw (2009)

177 Cal.App.4th 92, 103.) Defendant reasons a person who engages in voluntary

intercourse or oral copulation with a child is motivated by a sexual interest in a child,

and under the law that interest cannot be normal. Therefore, defendant contends a

section 647.6 defendant could be similarly situated to a Hofsheier-type defendant, in

that a section 647.6 defendant could commit an offense involving a 16 or 17 year old,

where both parties are willing, and the motivation is the same.

       Defendant’s argument is not persuasive because he is raising a facial challenge to

the statute, but supporting that contention with a hypothetical “as applied” argument.

Our Supreme Court has explained, “A facial challenge to the constitutional validity of a

statute or ordinance considers only the text of the measure itself, not its application to

the particular circumstances of an individual. [Citation.] ‘“To support a determination

of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by

suggesting that in some future hypothetical situation constitutional problems may

possibly arise as to the particular application of the statute . . . . Rather, petitioners must

demonstrate that the [statute’s] provisions inevitably pose a present total and fatal

conflict with applicable constitutional prohibitions.”’ [Citation.]” (Tobe v. City of

Santa Ana (1995) 9 Cal.4th 1069, 1084.) An “as applied” challenge to a statute

“contemplates analysis of the facts of a particular case or cases to determine the


                                              55
circumstances in which the statute or ordinance has been applied and to consider

whether in those particular circumstances the application deprived the individual to

whom it was applied of a protected right,” e.g., equal protection. (Id. at p. 1084.)

       Defendant’s argument is premised upon section 647.6 being applied to a

defendant whose victim was 16 or 17 years old, when the defendant was fewer than 10

years older than the victim, and where the victim was a willing participant in the

defendant’s conduct. Defendant’s argument is dependent upon the statute being applied

in a hypothetical scenario. Accordingly, defendant’s argument is not persuasive

because the hypothetical factual scenario is unrelated to the facts of this case. In this

case, the victim was 15 years old, defendant was more than 10 years older than the

victim, and arguably the victim was not a willing or voluntary participant since she said

defendant’s conduct made her “[e]xtremely uncomfortable.” In sum, defendant’s equal

protection argument is not persuasive.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                        MILLER
                                                                                            J.

We concur:

McKINSTER
                        Acting P. J.

RICHLI
                                  J.


                                             56
