Filed 8/16/16 P. v. Severt CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143499
v.
RAYMOND SEVERT,                                                      (Marin County
                                                                     Super. Ct. No. 183894A)
         Defendant and Appellant.


         Defendant Raymond Severt appeals from a judgment entered after a jury
convicted him of five counts of criminal conduct occurring in 2013 based on sexually
explicit text messages he sent to a 13-year old girl and his subsequent 45-mile drive to
meet her. Defendant raises a single issue on appeal—an evidentiary ruling that would
have allowed evidence of online communications he had in 1997 with another minor and
her mother (pretending to be a minor) to rebut expert testimony he wanted to present in
defense of the 2013 charges. Defendant claims the ruling effectively precluded him from
offering the expert testimony and thereby violated his constitutional rights to present a
defense and to due process. We conclude the court did not abuse its discretion in making
the evidentiary ruling and therefore affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         Defendant admitted that in 2013 he exchanged more than 200 text messages, many
sexually explicit, with then 13-year old Maria Doe over a 24-hour period, and then drove
45 minutes to meet her. His defense was that he reasonably believed Maria was an adult.


                                                             1
       Defendant obtained Maria’s telephone number after dialing into an adult chat line.
Maria called the line as a “prank” during a slumber party with friends. To leave an online
message, Maria had to press a number on her telephone indicating she was 18 or older.
She also recorded an introductory voice message stating she was 19.
       Within 27 minutes of beginning the text exchanges with defendant, Maria
confessed she was not an adult. At first, she said she was 17, and then, that she was 15.
       Defendant did not express any concern or hesitation following these disclosures.
In fact, less than a minute after receiving Maria’s text that she was 17, he responded
“Awesome,” asking a minute later, “So do you watch porn ever and masturbate[?] I love
masturbating and cumming.” Ten seconds after Maria texted she was 15, he asked “Do
you ever masturbate yourself[?]”
       During the course of their text exchanges, Maria disclosed it was her first time on-
line, she lived at home with her mother, attended high school, had tutoring afterward,
could not stay up late on school nights, and was “kinda boring.” She said she had to
babysit her cousins and help her mother, a gas station attendant, with her night job
assisting the disabled.
       When defendant asked her to describe her physical appearance, Maria replied she
was five feet eight inches tall and weighed 185 pounds, later confiding she had type 2
diabetes. When defendant asked what she would like to do if they met, initially she
responded “Maybe go to the beach or something romantic.” Later, however, she
suggested a movie, saying her mother could “drop [her] off.”
       Defendant’s texts, in contrast, focused on sexual matters. Less than five minutes
after Maria told him she was 17, he offered to “teach [her] how to do stuff,” adding he
could help her “kiss[] better” and teach her “[h]ow to hold a guys cock. Giving handjob
blowjob.” Asking if Maria wanted to “learn things like that,” he said “We could do it in
the car. Really fun.” Shortly after Maria told him she was 15 and suggested a movie,
defendant replied they could just “make out in [the] car” and “I’ll [j]ack off for you too.

                                             2
You can see me cum.” Later, still discussing a possible meeting that week at the theater,
defendant texted in quick succession: “Yes” “Lets plan meeting on Friday” “Kiss”
“Play with your tits” “You can feel my cock in your hands” “Do you want to try to put
my cock in your mouth too[?] Blowjob.”
       In his initial text exchanges, before Maria disclosed she was a minor, defendant
suggested they meet. He continued to express interest in meeting after her disclosure.
He encouraged her to “sneak away” by saying she was going to a friend’s house, and
offered to pick her up “from home” when her mother was away. He asked her to call and
Skype, and he actually did speak with her on the phone for about three minutes. He
repeatedly requested photos, suggesting she take some “[s]exy ones” in the “locker room
or bathroom at school,” and Maria did send him a photo. Later he texted, cautioning her,
“Make sure your mom can’t see messages. Erase them right :)”
       Eventually, Maria’s mother became suspicious about her daughter’s cell phone
activity and took a look at the phone. She found the exchange of messages, saw the
sexual content, and “freaked out.” As defendant continued to send new texts, she began
replying, posing as Maria, to determine whether he was an adult.
       Eventually defendant called Maria’s cell phone, but hung up when her mother
answered. Her mother returned the call, reached a doctor’s office and concluded an adult
was sending the texts. She took the cell phone to the police, while continuing to text with
defendant.
       In one of her messages, posing as her daughter, Maria’s mother said she was only
13. Undeterred, defendant replied, “So can you get away today[?]” “Kiss and touch[?]”
Eventually, defendant agreed to meet one block from Maria’s house at a 7-Eleven store in
Novato. After doing so, he texted, “You want to touch my cock right[?]” “Teach you
how to hold it in your hand” and asked, “Have you put your fingers in your pussy[?]
How deep[?]” After a few further exchanges about the meeting, defendant texted it



                                            3
would take him about 45 minutes to drive from Santa Rosa. When he arrived, police
officers arrested him.
       Defendant was charged with attempting a lewd act on a child under 14 (Pen. Code,
§§ 644, 288, subd. (a)); distribution of lewd material to a minor (id., § 288.2, subd. (a));
contacting and communicating with a minor for purpose of engaging in lewd and
lascivious behavior (id., § 288.3, subd. (a)); arranging a meeting with a minor for purpose
of engaging in lewd and lascivious behavior (id., § 288.4, subd. (b)); and annoying or
molesting a child (id., § 647.6, subd. (a)). A jury found him guilty on all counts.
                                         DISCUSSION
Defendant’s Expert Witnesses
       Defendant wanted to present testimony by two experts to support his claim that he
reasonably assumed Maria was an adult and therefore did not have the intent required for
the charged crimes.
       The first expert, Dr. James Herriot, was a professor of clinical sexuality and a
researcher on Internet chat culture and its fantasy component. Defendant planned to offer
Dr. Herriot’s testimony regarding “role-playing in the context of sexually explicit
conversations on the internet and other similar media.” Dr. Herriot would explain, for
example, “the idea of age-play and the expectations of someone participating in these
role-playing activities.” He also would “discuss why people might want to meet their
partners,” or “ask for a photograph,” to “ ‘de-mask’ the other player” without “any
intention of participating in sexual activity.”
       The second expert, Dr. Marty Klein, was a licensed marriage and family therapist,
with a Ph.D. in human sexuality. Dr. Klein was prepared to testify to the “prevalence of
age-play and sex play throughout culture,” and about how “people engage in erotic
fantasy role-playing for many reasons.” He would have testified about “the mindset” of
those engaging in such a “role-play partnership,” studies showing “sexual fantasy does



                                                  4
not predict sexual behavior,” and reasons “a participant might not seek to clarify the age
of his partner in the face of contradictory information.”
       At a pre-trial hearing, over the prosecution’s objection, the court granted
defendant the right to present the expert testimony, with certain limiting instructions,
which defendant does not challenge.
Defendant’s 1997 Online Communications
       In 1997, defendant communicated online with a girl who said at the outset she was
16 years old, asking what she looked like and whether she had a “nice body,” requesting
a photo, and asking if he might call her and whether she had a car. The girl was not
interviewed at the time by law enforcement, and told the prosecutor in this case she was
14 years old at the time. She also told the prosecutor the chatting became sexually
explicit, defendant asked “about her private parts,” and the experience “scared her” and
was “traumatizing.”
       During that same time frame, defendant also had online exchanges with a person
who represented herself as being 17, and these communications also included explicit
sexual content. This person was actually the mother of the 14-year-old, who made
contact with defendant after becoming concerned about his communications with her
daughter. Defendant expressed no concerns when the mother, posing as a minor, told
him she was 17. On the contrary, he immediately replied, “I like younger women!,”
asked to speak with her, asked what she looked like, and requested a photo. He also
suggested meeting at a park, saying he would like to “kiss” “touch” “stroke” and “lick
[her] all over,” observing one “can cum many different way (sic)”, and asking “do you
like oral?” He also asked whether she masturbated, offered to “teach” her, and suggested
she could “listen to [him] cumming” if she called him.
       Eventually, the minor’s mother contacted the police, who interviewed and warned
defendant about his online communications with minors, explaining the potential for
harm to them. Defendant agreed his conduct had been wrong, acknowledged the point in

                                              5
a letter of apology he sent to the minor, and assured the police he would never actually
meet any underage girl whom he connected with online. The local district attorney’s
office ultimately declined to prosecute.
The in Limine Motions Concerning Defendant’s 1997 Conduct
       Both the prosecution and defendant filed in limine motions concerning the
admissibility of evidence of defendant’s 1997 online communications. The prosecution
asserted the evidence was admissible under Evidence Code1 section 1101,
subdivision (b), to prove facts other than propensity, namely to show motive, intent, or
plan to communicate with a minor with lewd intent, and was admissible under section
1108 to show propensity to commit sexual offenses. In opposition, defendant maintained
section 1108 did not apply because the prior conduct was not a “criminal act” and even if
the section did apply, the evidence should be excluded under section 352. In his own
motion to exclude the evidence, defendant argued the factors identified in People v.
Ewoldt (1994) 7 Cal.4th 380, governing the admissibility of uncharged prior acts under
section 1101 to establish common scheme or plan, weighed against admissibility, and
even if they did not, the evidence should be excluded under section 352.
       Ultimately, the trial court denied the prosecution’s motion to allow the evidence in
its case-in-chief. However, it ruled the evidence would be admissible in rebuttal if
defendant’s experts raised questions about his knowledge or intent in communicating
with Maria.
       After meeting with both the prior victim and her mother, the prosecution asked the
court to re-consider its limitation on the use of the evidence. The trial court maintained
its ruling.




       1
           All further statutory references are to the Evidence Code.

                                              6
       Defendant also objected and urged the court to reconsider and bar the evidence
entirely. When it declined to do so, he opted not to call the experts, so the jury never
heard the evidence of his 1997 on-line conduct.
Evidence Code Sections 1101, subdivision (b), and 1108
       In his opening brief on appeal, defendant focused on section 1108, making the
same arguments he advanced in the trial court—that his 1997 on-line conduct did not
amount to a “criminal act” admissible under that section and even if it did, the evidence
should have been excluded under section 352. In the People’s responding brief, the
Attorney General not only responded to defendant’s section 1108 arguments, but also
asserted the evidence was admissible under section 1101, subdivision (b). In his reply
brief, defendant addressed both section 1108 and 1101, subdivision (b). As to section
1101, subdivision (b), he asserted, for the first time, that it has been “superceded” as to
sex crimes by section 1108.
       We first consider section 1101, subdivision (b), and review the court’s evidentiary
ruling for abuse of discretion. Abuse of discretion means the court “ ‘ “exercised its
discretion in an arbitrary, capricious, or patently absurd manner,” ’ ” resulting “ ‘ “in a
manifest miscarriage of justice.” ’ ” (People v. Bryant (2014) 60 Cal.4th 335, 390
(Bryant); see People v. Carrington (2009) 47 Cal.4th 145, 195.) “A merely debatable
ruling cannot be deemed an abuse of discretion.” (Bryant, at p. 390.)
       Section 1101 has two relevant subdivisions. Subdivision (a) “ ‘prohibits
admission of evidence of a person’s character, including evidence of character in the
form of specific instances of uncharged misconduct, to prove the conduct of that person
on a specified occasion.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).)
Subdivision (b) “ ‘clarifies, however, that this rule does not prohibit admission of
evidence of uncharged misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition.’ ” (Ibid.) Thus, evidence of past “bad



                                              7
acts” may be admitted to prove some material fact, such as intent, knowledge, or absence
of mistake. (§1101, subd. (b); People v. Burnett (2003) 110 Cal.App.4th 868, 880.)
       The trial court ruled evidence of defendant’s 1997 on-line conduct was relevant to
his intent, knowledge and absence of mistake when he continued communicating with
Maria after she said she was underage. Noting intent was an element of the charged
offenses, the court reasoned defendant “had warning that other people might not have.”
In 1997, a police officer “knock[ed] on his door and sa[id], look, this is not right. You’re
talking to a minor. You can’t do that.” Further, at the officer’s request, defendant wrote
a letter of apology, confirming he knew his communication with the minor was “very
inappropriate.” Thus, the court’s view was that the prior on-line conduct had “evidentiary
value to it as it relates to an element of the offense” and, in fact, had “strong probative
value.”
       We see no abuse of discretion in the trial court’s assessment of this evidence. As a
result of the events that occurred in 1997, defendant was, indeed, “in a different position”
than other adults who lacked experiences with correspondent’s misrepresentation about
their age in sexually charged communications. “People learn from their experiences.
Even when those experiences occurred long ago, the knowledge gained from such
experiences can be retained and recalled in the future.” (People v. Hendrix (2013)
214 Cal.App.4th 216, 242.) The knowledge defendant gained as a result of his 1997
conduct, of course, was that the age a sex-chatter claims to be on line may not be true,
and sex-chatting with a minor can be damaging to the child, is unlawful and great care
should be taken to avoid it. Further, the sex chats defendant had with the prior minor and
her mother posing as a minor, unfolded and had much the same content as his sex
chatting with Maria after she said she was a minor and with her mother, posing as Maria.
This was all directly relevant to whether defendant sent sexually explicit messages to
Maria and drove to meet her believing she might be underage, or did so completely by
mistake, reasonably believing she was an adult. (See People v. Rocha (2013)

                                              8
221 Cal.App.4th 1385, 1398 [prior burglary admissible to rebut defendant’s claim he was
a homeless drug user who innocently stumbled into the victim’s garage].)
       Defendant contends evidence of his 1997 on-line conduct was not relevant on
rebuttal because his experts were going to testify only about “what was occurring on
social media in 2013.” He maintains the trial court recognized this in ruling the evidence
would not be allowed in the prosecution’s case-in-chief. Defendant overstates the import
of the trial court’s ruling. What the trial court did, under the discretion vested in it by
section 352, was weigh the competing considerations in context. It did not abuse its
discretion in concluding the section 352 scale tipped in favor of keeping the evidence out
during the prosecution’s case-in-chief, but if defendant’s experts opened the door as to
his knowledge and intent, that would change the balance and pave the way for the
evidence on rebuttal. In that context, explained the court, the evidence of his 1997 on-
line conduct was “very probative evidence.” 2
       We therefore conclude there was no abuse of discretion in allowing evidence of
defendant’s 1997 on-line conduct as rebuttal under section 1101, subdivision (b). (See,
e.g., People v. Branch (2001) 91 Cal.App.4th 274, 281 (Branch) [testimony about
uncharged past sexual misconduct was admissible under section 1101, subdivision (b), as
relevant to defendant’s intent in touching the victim of the charged offenses].)
       As noted above, in his closing brief on appeal, defendant maintains section 1101,
subdivision (b), has been “superseded” by section 1108. We see no indication in the

       2
            Indeed, the trial court made it clear that if defendant’s experts were only going
to testify “there are adult chat lines where adults go on them and they talk about sex and
it’s not uncommon to play games on those chat lines, go ahead, the prior doesn’t come in
. . . if that’s what you want, it doesn’t say anything, but I don’t care.” The problem, as
the trial court observed, was if the experts went beyond that and intimated “that people go
to these web sites and have no intention of [d]oing things or they have no idea that they
could possibly be speaking to minors or there’s no reason to believe a minor would be
that site.” In short, the choice was left to defendant as to whether the experts’ testimony
would touch on matters as to which his 1997 online conduct would be relevant rebuttal.


                                               9
record defendant ever advanced this argument in the trial court. Nor did he advance it in
his opening brief on appeal. “Normally, we ignore arguments, authority, and facts not
presented and litigated in the trial court. Generally, issues raised for the first time on
appeal which were not litigated in the trial court are waived.” (Bialo v. Western Mutual
Ins. Co. (2002) 95 Cal.App.4th 68, 73 (Bialo).) This is particularly true as to evidentiary
rulings. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1121; People v. Price
(1991) 1 Cal.4th 324, 430 [“[d]efendant may not challenge on appeal the admission of
evidence on grounds not urged in the trial court”].)
       Even had defendant preserved the issue, we would not be persuaded. Defendant
relies on People v. Robertson (2012) 208 Cal.App.4th 965 (Robertson), in contending
section 1108 has superseded section 1101, subdivision (b). However, in Robertson, the
challenged evidence was admitted under section 1108—whether it also could have been
admitted under section 1101, subdivision (b), was never considered. (Robertson, at p.
971; see Siry Investments, L.P. v. Farkhondehpour (2015) 238 Cal.App.4th 725, 731
[“cases are not authority for propositions they did not consider”].)
       Moreover, as Robertson observed, in 1995, the Legislature enacted section 1108
“ ‘to expand the admissibility of disposition or propensity evidence in sex offenses
cases.’ ” (Robertson, supra, 208 Cal.App.4th at p. 989, italics added, quoting People v.
Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) Thus, section 1108, subdivision (a)
provides: “In a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to [Evidence
Code] Section 352.” Section 1108, subdivision (c), goes on to state that “[t]his section
shall not be construed to limit the admission or consideration of evidence under any
other section of this code.” (Italics added; see, e.g., Green v. State of California (2007)
42 Cal.4th 254, 260 [A “statute’s plain meaning controls the court’s interpretation unless
its words are ambiguous.”]; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [“[i]f

                                              10
the language is clear and unambiguous there is no need for construction].) This
unambiguous language plainly leaves section 1101, subdivision (b), as an alternative
means to present evidence of past sexual misconduct evidence if the requirements of that
section are satisfied. (See, e.g., Branch, supra, 91 Cal.App.4th at pp. 280–281 [ruling
uncharged past sexual acts “admissible under both sections” 1101(b) and 1108].)
       Because the trial court did not abuse its discretion in ruling the evidence of
defendant’s 1997 on-line conduct was admissible under section 1101, subdivision (b), to
show knowledge, intent, and the absence of mistake in connection with the charged
offenses, we need not, and do not, consider whether that evidence was also admissible
under section 1108. (See People v. Story (2009) 45 Cal.4th 1282, 1295.)
       Section 352
       Defendant contends that even if evidence of his 1997 on-line conduct was
admissible under section 1101, subdivision (b), it should have been excluded as expert
rebuttal evidence under section 352 because its probative value was substantially
outweighed by the risk of undue prejudice, confusion of issues, and undue consumption
of time.3 He maintains the trial court acknowledged the evidence was “too prejudicial”
and insufficiently probative when it barred the prosecution from introducing it in its case-
in-chief.
       “In [People v. Ewoldt (1994) 7 Cal.4th 380, 404–406 (Ewoldt)], the Supreme
Court discussed a number of factors that should be considered in making a judgment,
pursuant to section 352, about admissibility of evidence of uncharged offenses, where
introduction is sought under section 1101, subdivision (b).” (Branch, supra,
91 Cal.App.4th at p. 282.) “[T]he probative value of the evidence must be balanced


       3
        Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
omission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”


                                             11
against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the
possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and
(4) the amount of time involved in introducing and refuting the evidence of uncharged
offenses.” (Ibid.)
          We have already discussed the probative value of the evidence of defendant’s
1997 online conduct. As the trial court ruled, it was “very probative evidence” as to
defendant’s claim that he believed Maria was an adult, and not a minor as she and her
mother repeatedly stated. Defendant contends the current case differs markedly from his
1997 conduct because in 1997 he was told at the outset of his on-line communications he
was communicating with an underage girl and with a purportedly underage girl (the
minor’s mother). Here, however, he met Maria through an adult chat line and she
initially said she was 19. However, less than 30 minutes into the exchange (which lasted
roughly 24 hours), Maria told him she was, in fact, not an adult. She later reiterated this
point, never again asserted she was an adult, and the substance of her chatting gave every
indication she was, indeed, school-aged. Defendant, moreover, never expressed any
concern on receiving Maria’s communications that she was underage, except to ask,
“You okay with me being older[?]” When Maria replied “Yes,” he immediately launched
into sex chat, asking things like “do you watch porn ever and masturbate” and stating “I
love masturbating and cumming.” He also volunteered that he “love[d] high school
girls.”
          While defendant maintains he reasonably retained complete confidence in Maria’s
initial assertion she was an adult, evidence of his 1997 conduct was highly probative this
was not true. The evidence strongly rebutted his assertion he had been operating under a
mistake or with innocent intent. Having been previously contacted by the police,
specifically warned against sending sexually explicit online communications to minors,
and counseled about the potential harm for the minor, one might reasonably have
expected him to have immediately ended any communication with a sex chat partner who

                                              12
told him she was underage, particularly one who said several times she was underage and
whose conversation had all the earmarks of that of a school aged girl and lacked any trace
of adult sophistication.
       The probative value of the evidence of defendant’s 1997 conduct is increased by
the fact that its source was independent of the evidence of the charged offense. (Ewoldt,
supra, 7 Cal.4th at p. 404.) As the Supreme Court observed in Ewoldt, “if a witness to
the uncharged offense provided a detailed report of that incident without being aware of
the circumstances of the charged offense, the risk that the witness’s account may have
been influenced by knowledge of the charged offense would be eliminated and the
probative value of the evidence enhanced.” (Ibid.) Here, it is undisputed the 1997
incidents involved another minor and her mother, who independently contacted the police
long before the events giving rise to the current charges. There is no risk, therefore, that
their account was influenced by knowledge of the pending charges, and this enhanced the
probative value of the 1997 conduct.
       “On the other side of the scale, the prejudicial effect of this evidence is heightened
by the circumstance that defendant’s uncharged acts did not result in criminal
convictions. This circumstance increased the danger that the jury might have been
inclined to punish defendant for the uncharged offenses, regardless of whether it
considered him guilty of the charged offenses, and increased the likelihood of ‘confusing
the issues.’ ” (Ewoldt, supra, 7 Cal.4th at p. 405; but see, e.g., Bryant, supra, 60 Cal.4th
at p. 406 [evidence of past uncharged misconduct may be admissible subject to a limiting
instruction]; People v. Frazier (2001) 89 Cal.App.4th 30, 42 (Frazier) [the risk a jury
might punish the defendant for uncharged crimes “is counterbalanced” by jury
instructions, for example, directing that “the jury ‘must not convict the defendant of any
crime with which he is not charged’ ”].) In this case, the trial court accounted for the risk
by barring evidence of defendant’s 1997 conduct from the prosecution’s case in chief. It
ruled the evidence would be admitted exclusively as rebuttal and only if defendant’s

                                             13
experts opened the door by suggesting anyone engaged in online age-related role-play
would have no reason to suspect a partner was underage. This limitation on use of the
evidence was well within the court’s discretion. (See, e.g., People v. Scally (2015) 243
Cal.App.4th 285, 292–293 [evidence properly admitted under section 1101, subdivision
(b), as rebuttal to show the defendant’s intent, i.e., that he “was not a victim of his own
ignorance”].)
       Nor is this a case where the evidence of the prior misconduct was stronger than the
evidence supporting the new charges. Although in 1997 defendant was told at the outset
of the communications he was communicating with “minors,” Maria told him the same
thing within 30 minutes of their 24 hour chat marathon. Furthermore, after being told
several times he was chatting with a minor, defendant followed through on discussions
about meeting her, planning a specific time and place, and then driving 45 miles, to see
her, even after receiving a message (from Maria’s mother posing as Maria) that she was
just 13 years old. If anything, the evidence in the current case was significantly more
alarming, reducing the prejudicial effect of the 1997 evidence. (Ewoldt, supra, 7 Cal.4th
at p.405 [the potential for prejudice is decreased if evidence of the uncharged acts was
“no stronger and no more inflammatory” than evidence of the charged offense].)
       The fact that defendant’s previous misconduct occurred about 16 years before the
trial, although weighing against admission, is “not itself dispositive.” (People v. Loy
(2011) 52 Cal.4th 46, 62.) “No specific time limits have been established for determining
when an uncharged offense is so remote as to be inadmissible.” (Branch, supra,
91 Cal.App.4th at p. 284 [allowing evidence of past offenses despite a 30-year gap].) In
People v. Ing (1967) 65 Cal.2d 603, 612, the Supreme Court “held admissible evidence of
uncharged misconduct even though one of the prior offenses was committed 15 years
before the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 405; see, e.g., People v.
Cordova (2015) 62 Cal.4th 104, 133 [18-year gap did not alone compel exclusion of



                                             14
evidence of past offense]; Robertson, supra, 208 Cal.App.4th at p. 992 [34-year gap was
not “too remote to have probative value”].)
       Moreover, “significant similarities” between prior misconduct and the charged
offenses may “ ‘balance[] out the remoteness.’ ” (Branch, supra, at p. 285, quoting
People v. Waples (2000) 79 Cal.App.4th 1389, 1395; accord, Robertson, supra,
208 Cal.App.4th at p. 992.) In this case, defendant’s communications with Maria were
very similar in content to his 1997 communications. In each instance, his sex chat
partners told him early on they were minors. Each time he expressed pleasure rather than
concern on receiving the information, remarking in 1997, “nice age” and “I like younger
women!” , and to Maria saying, “I love younger” and “Awesome” when Maria said she
was 17. In each instance, defendant asked about the girl’s physical appearance, requested
a photo, and asked if he could call to talk directly by phone.
       His sexually explicit communications with the ostensible 17 year old in 1997 and
with Maria in 2013 also covered similar ground. He asked them to call him, talked about
meeting, suggested they could “learn” from him, offered to “kiss” and “touch” them,
asked if they masturbated, referred to their “clit”, suggested they watch him masturbate,
suggested oral sex,and suggested they keep their communications with him secret from
their parents. In short, the substantial similarities in the content of defendant’s messages
balance out the remoteness of the 1997 conduct. (See, e.g., Robertson, supra, 208
Cal.App.4th at p. 992 [“striking similarities” between past and current offenses balanced
out the 30-year gap].)
       Finally, defendant contends admitting evidence of his 1997 conduct would have
required a “mini-trial,” lasting as long or longer than that required for the 2013 charges,
involving testimony from multiple witnesses, and causing him unfair prejudice. The
prosecution advised the trial court, however, it would only have to present testimony of
two witnesses, specifically the then 16-year-old’s mother (the ostensible 17-year-old) and
a police officer. In comparison, it called 10 witnesses to present evidence of the conduct

                                              15
underlying the charged offenses. Moreover, defendant concedes the basic underlying
facts regarding the 1997 communications and has not indicated he would have testified or
called additional witnesses in response. It does not appear, therefore, it would have
required an undue amount of time to present the rebuttal evidence. (See, e.g., Frazier,
supra, 89 Cal.App.4th at p. 42 [declining to find undue consumption of time where three
victims’ testimony of past uncharged offenses consumed 182 pages of reporter’s
transcript, or 27 percent of the total trial transcript].)
       In sum, there was no abuse of discretion in the trial court’s weighing analysis
under section 352.
       Due Process and Right to Present a Defense
       Given our conclusion that the trial court did not abuse its discretion in allowing
evidence of defendant’s 1997 conduct could be introduced on rebuttal, we likewise
conclude defendant’s constitutional due process rights were not compromised. The
“ ‘ “routine application of state evidentiary law does not implicate [a] defendant’s
constitutional rights.” [Citation.]’ [Citation.]” (People v. Lewis (2009) 46 Cal.4th
1255, 1289.) Here, defendant’s constitutional argument relies entirely on the contention
that his 1997 conduct was inadmissible. Because we affirm the trial court’s ruling that
the evidence was admissible as potential rebuttal, the constitutional claim necessarily also
fails. (See, e.g., Fuiava, supra, 53 Cal.4th at p. 670.)
                                          DISPOSITION
       The judgment is affirmed.




                                                16
                                 _________________________
                                 Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




                            17
