Filed 7/20/16 P. v. Khalif CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E062821

v.                                                                      (Super.Ct.No. FSB1105219)

WAEL FAYAEZ KHALIF,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Katrina West,

Judge. Affirmed in part and reversed in part.

         Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
                                    I. INTRODUCTION

       On September 17, 2014, a jury convicted defendant and appellant, Wael Fayaez

Khalif, of attempted unlawful sexual intercourse with a minor (Pen. Code, §§ 664, 261.5,

subd. (c), count 1),1 and of going to meet with a minor for lewd purposes (§ 288.4, subd.

(b), count 2). Defendant was sentenced to state prison on count 2 for four years and to a

consecutive four-month term on count 1. The trial court stayed execution of defendant’s

sentence, and placed defendant on supervised probation for 36 months, with various

terms and conditions, including that he serve 210 days in county jail.

       On this appeal, defendant challenges both convictions, arguing (1) there was

insufficient evidence to support either conviction, (2) the evidence showed he was

entrapped into committing both offenses as a matter of law, (3) the trial court erred in not

giving a unanimity instruction sua sponte on count 2, and (4) the trial court erred in

admitting evidence of defendant’s prior sexual offense. Defendant also asserts the

combined effect of the trial errors violated his constitutional due process rights. The

People concede that defendant’s count 1 conviction for attempted unlawful sexual

intercourse with a minor must be reversed because insufficient evidence shows defendant

specifically intended to have sexual intercourse, as opposed to engaging in other sexual

activity, with a minor, and we agree. In all other respects, we affirm the judgment.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
                            II. FACTUAL BACKGROUND

       On October 15, 2011, San Bernardino police officers conducted a prostitution

sting operation from an apartment complex in San Bernardino. Using a Spanish language

magazine called “Exclusiva,” officers called the number for a business named “Pasion

Spa,” which featured a scantily clad woman, and which advertised a 30-minute massage

for $60. Based on the language and content of the advertisement for Pasion Spa,

including the photograph of the scantily clad woman, police suspected the company was

involved in prostitution services. A male officer called Pasion Spa and asked for “full

services,” which he understood meant sexual services. A woman arrived at the apartment

approximately two and a half hours later, and she was arrested for prostitution. This

woman led police to her female pimp who was parked outside the apartment complex,

and the pimp was arrested for pimping and pandering.

       The pimp directed police to her cell phone, which was in her car, and police

confirmed that her cell phone number was the same as the one listed on the Pasion Spa

advertisement. The pimp’s cell phone, which had received over 15 missed calls, received

a call around 6:21 p.m. A female officer posed as the pimp and answered the call from a

man who gave his name as “Alex.” Police later confirmed defendant was Alex.

       Defendant asked whether any “very young girls” were available, and the officer

confirmed that there were, even though no underage girls were actually involved or

arrested during the sting operation. Based on her training and experience, the officer

understood “very young girls” to mean a juvenile. Defendant advised the officer he had



                                            3
an errand to run and would call back later. Approximately 20 minutes later, the pimp’s

telephone received four calls from defendant’s number. The officer missed the first three

calls but answered the last call, and defendant told the officer he had cancelled his errand.

The officer then told defendant she had two girls available, a 16 year old and a nearly 18

year old, and she described what the girls looked like. She also gave defendant the

address of the apartment and explained to him that it would be $200 per hour for one girl;

defendant asked if there was a discount if he got both girls for 30 minutes each. During

the conversation, defendant asked the officer if one of the girls was 18. The officer

reiterated that the girls were 16 and almost 18, and defendant responded, “Oh. Okay.

Well, alright.” After the officer asked whether defendant would be coming to the

apartment at that time, defendant asked: “Are you sure? Yeah, yeah. I want to be like

over eighteen (unintelligible) understand your English but I’ll be there.” Defendant again

asked, “Oh, okay. How old?,” to which the officer responded, “Almost 18.” Defendant

again responded, “Oh, okay.” Defendant never specifically asked for a girl under 18

years of age.

       The officer then asked defendant, “What are you looking for,” and defendant

responded, “Well, I can’t tell you on the phone because I don’t like to get, you know,

under eighteen so I don’t know, I wanna, I see you.” Defendant then asked the officer,

“Are you affiliated with police or anything,” which the officer denied. Defendant hung

up the telephone after receiving directions to the apartment from the officer, but called

five more times for additional directions. During one of these calls, the officer reminded



                                             4
defendant that the girls were young, and asked defendant to be gentle with them.

Defendant assured her that he would be gentle with the girls, and he mentioned he would

bring extra cash for tips.

       Defendant arrived at the apartment around 8:45 p.m. and was arrested after police

officers confirmed he was the person who identified himself as Alex. Defendant was in

possession of $963 in cash, as well as a cell phone, which police confirmed defendant

had used to call the pimp’s cell phone.

                                    III. DISCUSSION

A. Defendant’s Count 1 Conviction for Attempted Unlawful Sexual Intercourse With a

Minor Must be Reversed Because Insufficient Evidence Supports It

       As noted, defendant was charged and convicted in count 1 of felony attempted

unlawful sexual intercourse with a minor. (§§ 664, 261.5, subd. (c).) “Unlawful sexual

intercourse is an act of sexual intercourse accomplished with a person who is not the

spouse of the perpetrator, if the person is a minor.” (§ 261.5, subd. (a).) Sexual

intercourse is defined as “any penetration, no matter how slight, of the vagina or genitalia

by the penis,” and a minor is defined as “a person under the age of 18 years.” (§ 261.5,

subd. (a).) This crime can be charged as a felony, as it was here, if the victim is more

than three years younger than the perpetrator. (§ 261.5, subd. (c).)

       Defendant contends the People presented insufficient evidence that he committed

attempted sexual intercourse with a minor, as the People did not present any evidence of

defendant’s age. (§ 261.5, subd. (c).) Defendant also asserts there was insufficient



                                             5
evidence he “took a direct but ineffective step toward committing unlawful sexual

intercourse with a minor.” (§ 21a.)

       The People acknowledge the evidence established defendant intended to engage in

some form of lewd and lascivious conduct with minors, but they concede there was no

evidence defendant specifically intended to engage in sexual intercourse, as opposed to

engaging in another form of sexual activity with them, and for this reason the count 1

conviction must be reversed. We agree the People did not introduce any evidence that

defendant specifically intended to have sexual intercourse with the minors, as opposed to

engaging in other sexual activity with them. While it was possible defendant intended to

have sexual intercourse with the minors, “a mere possibility is nothing more than

speculation. Speculation is not substantial evidence.” (People v. Ramon (2009) 175

Cal.App.4th 843, 851; see People v. Perez (1992) 2 Cal.4th 1117, 1133 [“‘“A finding of

fact must be an inference drawn from evidence rather than . . . a mere speculation as to

probabilities without evidence”’”].) Because the People failed to present evidence

defendant went to the apartment with the specific intention of engaging in unlawful

sexual intercourse with any minors, defendant’s count 1 conviction for attempted

unlawful sexual intercourse with a minor was not supported by substantial evidence and

must therefore be reversed.




                                             6
B. Substantial Evidence Supports Defendant’s Count 2 Conviction of Going to Meet

With a Minor for Lewd Purposes

       Defendant contends there was insufficient evidence to support his count 2

conviction of going to meet with a minor for lewd purposes (§ 288.4, subd. (b)), which is

committed if a person “goes to the arranged meeting place at or about the arranged time”

in order to meet “with a minor or a person he or she believes to be a minor for the

purpose of exposing his or her genitals or pubic or rectal area, having the child expose his

or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior . . . .”

(§ 288.4, subds. (a), (b).) For purposes of the statute, a minor is a person under the age of

18 (People v. Yuksel (2012) 207 Cal.App.4th 850, 855), and the jury was so instructed.

Defendant argues that his conviction for violating section 288.4 cannot be sustained

because there were no actual minors, or persons that defendant believed to be minors, that

defendant arranged to meet with.

       In assessing the sufficiency of the evidence, an appellate court reviews the entire

record to determine whether it contains substantial evidence that is reasonable, credible,

and of solid value, such that a rational trier of fact could find the defendant guilty beyond

a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) We view the

evidence in the light most favorable to the judgment, drawing all reasonable deductions

in favor of the judgment. (People v. Boyer (2006) 38 Cal.4th 412, 480.) If the verdict is

supported by substantial evidence, we must give “‘“due deference to the trier of fact”’”

and not retry the case. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh



                                               7
the evidence; rather, we evaluate whether the evidence presented at trial and the

reasonable inferences that could be derived from the evidence support the jury’s

conclusions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

       Defendant claims a violation of section 288.4 requires that there be an actual

minor, or minors, with whom he arranged to meet. This requires us to interpret section

288.4. “Our role in construing section [288.4], as with any statute, is to ascertain the

Legislature’s intent so as to effectuate the purpose of the law. We accomplish this task if

possible by giving the words of the statute their usual, ordinary meanings. [Citation.]”

(In re Reeves (2005) 35 Cal.4th 765, 770.) “If the statutory language is unambiguous,

then its plain meaning controls. If, however, the language supports more than one

reasonable construction, then we may look to extrinsic aids, including the ostensible

objects to be achieved and the legislative history. [Citation.]” (People v. Cole (2006) 38

Cal.4th 964, 975.) In interpreting a statute, the ultimate goal is to “‘select the

construction that comports most closely with the apparent intent of the Legislature, with a

view to promoting rather than defeating the general purpose of the statute, and avoid an

interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui

(2002) 28 Cal.4th 205, 212.)

       Here, the usual and ordinary meaning of the phrase “arranges a meeting with a

minor or a person he or she believes to be a minor” in section 288.4 refers to the ultimate

goal of meeting a minor to engage in lewd or lascivious behavior. (See People v. Yuksel,

supra, 207 Cal.App.4th at p. 853 [“The statute targets an adult who . . . arranges a



                                              8
sexually illicit meeting with a minor.”].) Contrary to defendant’s argument, there is no

requirement in section 288.4 that a minor be involved in arranging the meeting. The

plain meaning of section 288.4 also does not support defendant’s interpretation that he

cannot be convicted of section 288.4 if there were no actual minors that defendant

arranged to meet.

       Our interpretation of section 288.4 is bolstered by the legislative history of the

statute. “On November 7, 2006, the voters enacted Proposition 83, The Sexual Predator

Punishment and Control Act: Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec.

(Nov. 7, 2006); hereafter Proposition 83 or Jessica’s Law). Proposition 83 was a wide-

ranging initiative intended to ‘help Californians better protect themselves, their children,

and their communities’ (id., § 2, subd. (f)) from problems posed by sex offenders by

‘strengthen[ing] and improv[ing] the laws that punish and control sexual offenders’ (id.,

§ 31).” (In re E.J. (2010) 47 Cal.4th 1258, 1263) Proposition 83 added new laws,

including section 288.4.2

       The stated purposes of section 288.4 include “provid[ing] a comprehensive,

proactive approach to preventing the victimization of Californians by sex offenders,”

addressing “key flaws” in other bills “that inadvertently tie the hands of police in

performing . . . sting operations,” “mak[ing] all of California’s communities safer from


       2 The June 22, 2006 amended Senate Bill referred to section 288.3. (Sen. Bill No.
1128 (2005-2006 Reg. Sess.) § 7, as amended June 22, 2006.) In 2007, section 288.3 was
renumbered as section 288.4. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Sen. Bill No. 172 (2007-2008 Reg. Sess.) as amended Sept. 7, 2007.)


                                              9
all sexual predators, not just some,” and authorizing police to use decoys to accomplish

the statute’s purpose. (Sen. Rules Com., Off. of Sen. Floor Analyses, 2d reading analysis

of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended Aug. 22, 2006, p. 7.)

       In this case, there is substantial evidence that defendant arranged to meet with

minors, or with persons he believed to be minors, for the purpose of engaging in lewd and

lascivious behavior. In speaking with the officer who posed as the pimp, defendant asked

whether any “very young girls” were available. After police confirmed the only girls

available were both minors, and rather than ending the conversation and rejecting the

opportunity to meet with two minors, defendant asked for directions to the two minor

girls’ location, told the officer that he would be gentle with the girls, and brought $963 in

cash to the apartment.

       The sting operation furthered section 288.4’s goal of providing broad protection of

minors from sexual predators. On the other hand, defendant’s proposed interpretation

severely limits the protections under section 288.4, as it would exclude sting operations

where, as here, no minors were actually involved in the operation. Such an interpretation

would lead to absurd consequences, and would not further section 288.4’s stated goal of

providing “a comprehensive, proactive approach to preventing the victimization of

Californians by sex offenders.”

       We conclude substantial evidence shows defendant arranged to meet with a minor,

or with a person he believed to be a minor, and was therefore guilty as charged in count

2.



                                             10
C. The Evidence Did Not Establish Entrapment as a Matter of Law

       At trial, defendant relied on an entrapment defense. Defendant now claims the

judgment must be reversed because the record establishes he was entrapped by police as a

matter of law. We disagree.

       “In California, the test for entrapment focuses on the police conduct and is

objective. Entrapment is established if the law enforcement conduct is likely to induce a

normally law-abiding person to commit the offense. [Citation.] ‘[S]uch a person would

normally resist the temptation to commit a crime presented by the simple opportunity to

act unlawfully. Official conduct that does no more than offer that opportunity to the

suspect—for example, a decoy program—is therefore permissible; but it is impermissible

for the police or their agents to pressure the suspect by overbearing conduct such as

badgering, cajoling, importuning, or other affirmative acts likely to induce a normally

law-abiding person to commit the crime.’ [Citation.]” (People v. Watson (2000) 22

Cal.4th 220, 223, quoting People v. Barraza (1979) 23 Cal.3d 675, 689-690; People v.

Federico (2011) 191 Cal.App.4th 1418, 1422.)

       “‘Entrapment as a matter of law is not established where there is any substantial

evidence in the record from which it may be inferred that the criminal intent to commit

the particular offense originated in the mind of the accused.’ [Citation.]” (People v.

Moran (1970) 1 Cal.3d 755, 760; see People v. Lee (1990) 219 Cal.App.3d 829, 836

[“An appellate court will only find entrapment as a matter of law where ‘the evidence is

so compelling and uncontradicted the jury could draw no other reasonable inference.’”].)



                                            11
       Substantial evidence shows that the criminal intent to meet with two minors for

lewd purposes originated in defendant’s mind, as it was defendant who initiated the call

to Pasion Spa and asked for “very young girls.” Although defendant never specifically

asked for a minor, and even specifically asked about an 18 year old, he also did not object

when the female officer, posing as the pimp, advised him that the two available girls were

minors. Instead, after being told both girls were minors, he negotiated a price for the two

girls and promised to be gentle with them. He also repeatedly called the number for

Pasion Spa to obtain additional directions to the apartment, where he was arrested with

$963 in cash. The police running the sting operation did not induce defendant to commit

the offense; rather, they merely offered defendant the opportunity to act unlawfully.

Based on this evidence, we conclude defendant was not entrapped by the police as a

matter of law.

D. The Trial Court Was Not Required to Give the Jury a Unanimity Instruction Sua

Sponte on Count 2

       Defendant argues the trial court erroneously failed to instruct the jury that it had to

unanimously decide which minor defendant attempted to meet in count 2, to wit, the 16

year old or the almost 18 year old. The trial court was under no obligation to give such a

unanimity instruction sua sponte. The conviction was proper because the evidence shows

defendant intended to meet with one or both of the minors.

       A “unanimity instruction is appropriate ‘when conviction on a single count could

be based on two or more discrete criminal events,’ but not ‘where multiple theories or



                                             12
acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In

deciding whether to give the instruction, the trial court must ask whether (1) there is a

risk the jury may divide on two discrete crimes and not agree on any particular crime, or

(2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to

the exact way the defendant is guilty of a single discrete crime. In the first situation, but

not the second, it should give the unanimity instruction.” (People v. Russo (2001) 25

Cal.4th 1124, 1135.) A unanimity instruction is not required where, as here, the

defendant is charged with one crime based on one act that affected two victims, and

where there is no evidence the defendant committed the crime as to one victim but not the

other. (People v. Carrera (1989) 49 Cal.3d 291, 311-312 [one robbery charge involving

two victims]; see People v. Jennings (2010) 50 Cal.4th 616, 679.)

       Defendant was charged and convicted in count 2 of one crime—going to meet

with a minor for lewd purposes. The evidence shows defendant made an arrangement

with the female officer, who was posing as the pimp, to meet either, or both, of the two

minor girls. Because defendant committed one crime, and because there was no evidence

defendant committed the crime as to one potential victim but not the other, the trial court

was not required to give the jury a unanimity instruction sua sponte, as there was no “risk

the jury may divide on two discrete crimes and not agree on any particular crime.”

(People v. Russo, supra, 25 Cal.4th at p. 1135.)




                                              13
E. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Defendant’s

Prior Sexual Offense

       Lastly, defendant asserts the trial court erred in admitting evidence of defendant’s

prior uncharged sexual offense involving a minor, as such evidence was inadmissible to

prove defendant’s conduct on October 15, 2011, particularly where his count 2 conduct

was dissimilar from his prior sexual offense. The trial court did not err in admitting

evidence of defendant’s prior sexual offense.

       1. Background—Evidence of Defendant’s Prior Uncharged Sex Offense

       On June 24, 2014, the People filed a brief seeking to introduce the testimony of a

woman who claimed defendant molested her in 2007, when she was 15 years old. The

People sought to introduce this evidence pursuant to Evidence Code section 1108, which

provides, in pertinent part: “In a criminal action in which the defendant is accused of a

sexual offense, evidence of the defendant’s commission of another sexual offense or

offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is

not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd.

(a).) Defendant moved in limine to exclude this evidence pursuant to Evidence Code

section 352, but the court ruled the evidence would be admissible pursuant to Evidence

Code section 1101, subdivision (b), given the similarities between both offenses,

including defendant’s attempts to pay for sex in both situations.

       At trial, the victim of the prior sex offense testified she was 15 years old in May

2007. At 7:15 p.m. one evening in May, she was ordering food at a fast food restaurant a



                                             14
few blocks from her parents’ business. Defendant approached her and asked whether she

was a street walker, which she interpreted as defendant asking her if she was a prostitute.

When she said no, he asked whether she would be interested in being a model, and told

her that he had more information in his car. Defendant asked if she had a driver’s

license, and she advised him she was only 15 years of age. She got into defendant’s car,

where he showed her hundreds of dollars in cash. He drove the victim down a small

street behind the restaurant and stopped about a block away from the restaurant. He then

asked her whether she had any hair on her body, and she lifted her shirt to show him that

she did not have any hair on her stomach. He then put his hand up the victim’s shirt,

touching her breasts, before she told him to stop. He stopped, apologized, and then gave

her $50 for making her feel uncomfortable. He asked whether she had a boyfriend,

which she denied. He then smiled at her, told her he was horny, and then reached down

her pants, touching the top of her vagina. She told him that she was uncomfortable, got

out of the car, went to her parents’ business, and reported the incident to the police. Her

parents took her to the emergency room to be examined, and she gave the $50 to the

police.3

       The trial court instructed the jury that the People presented evidence that

defendant committed the crime of a lewd act with a child between the ages of 14 and 15


       3  Defendant was charged with a sex offense involving the 15-year-old victim, but
he ultimately pled guilty to assault with a deadly weapon other than a firearm. (§ 245,
subd. (a)(1).) It is unclear from the record the basis for defendant ultimately pleading
guilty to this charge.


                                             15
years old that was not charged in the present case. (§ 288, subd. (c)(1).) The trial court

further instructed that, if the People met their burden of showing defendant committed the

uncharged offense, the jury could, but was not required to, conclude defendant was

disposed or inclined to commit sexual offenses based on his commission of the prior

uncharged sex offense. The jury was also instructed that it could not convict defendant of

either count based solely on his commission of the prior sexual offense, and that the

purpose of this evidence was “for the limited purpose of determining the defendant’s

intent, plan, and knowledge.”

       2. Standard of Review

       A trial court’s decision to admit evidence pursuant to Evidence Code section 1101

or 1108 is reviewed for abuse of discretion. (People v. Leon (2015) 61 Cal.4th 569, 597

[Evid. Code, § 1101, subd. (b)]; People v. Merriman (2014) 60 Cal.4th 1, 58 [Evid. Code,

§ 1108].) A court does not abuse its discretion in admitting evidence of other sexual acts

unless its ruling “‘“falls outside the bounds of reason”’” and “[w]e will only disturb a

trial court’s ruling under Evidence Code section 352 where the court has exercised its

discretion in a manner that has resulted in a miscarriage of justice. [Citation.]” (People

v. Miramontes (2010) 189 Cal.App.4th 1085, 1098.)

       3. Analysis

       Evidence Code section 1101, subdivision (a), prohibits “evidence of a person’s

character or a trait of his or her character . . . when offered to prove his or her conduct on

a specified occasion.” However, under subdivision (b) of Evidence Code section 1101,



                                              16
“evidence that a person committed a crime” may be admissible “when relevant to prove

some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident . . . .)” And, as noted, pursuant to Evidence Code section

1108, “[i]n a criminal action in which the defendant is accused of a sexual offense,

evidence of the defendant’s commission of another sexual offense or offenses is not made

inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible

pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd. (a).)

       If a prior sexual offense is similar in nature to the charged offense, the similarity

of the offenses is central to the trial court’s “evaluation of whether the evidence tended to

prove motive, intent, a common design, defendant’s identity as the perpetrator, or the

victim’s lack of consent, under Evidence Code section 1101. [Citations.] In addition, the

degree of similarity is relevant to the evaluation of whether the probative value of the

evidence outweighs its prejudicial effect under Evidence Code section 1108. [Citation.]”

(People v. Lewis (2009) 46 Cal.4th 1255, 1285.) “[T]he clear purpose of [Evidence

Code] section 1108 is to permit the jury’s consideration of evidence of a defendant’s

propensity to commit sexual offenses,” and “[w]hether an offense is charged or

uncharged in the current prosecution does not affect in any way its relevance as

propensity evidence.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1164.)

       Defendant argues that the prior sexual offense and the current charged offenses

were dissimilar because, in the prior sexual offense, he “allegedly took the initiative to

approach [the 15-year-old victim] and take her away,” while, here, he only called a



                                             17
massage establishment and attempted to procure a girl who was at least 18 years of age.

We reject defendant’s argument, as, in both incidents, defendant attempted to pay a minor

and sought to engage the minor in some form of lewd or lascivious behavior, even if he

utilized different methods to achieve this objective. As noted, in the prior uncharged

sexual offense, he touched a 15-year-old’s breasts, told her he was horny, and touched the

top of her vagina. He also gave her $50 because he had made her feel uncomfortable.

Here, defendant called Pasion Spa and asked for “very young girls,” agreed to meet the

two girls even after being told they were both minors, promised he would be gentle with

the girls, and arrived at the apartment with $963 in cash. Based on the similarity of

defendant’s attempts to pay a minor to engage in lewd and lascivious behavior, the prior

sexual offense was admissible under Evidence Code section 1101, subdivision (b) to

show defendant had the motive, intent, plan or knowledge of meeting with the two

minors and paying them to engage in lewd or lascivious behavior.

       Furthermore, the degree of similarity between the two incidents is relevant to the

issue of whether evidence of the prior sexual offense was admissible under Evidence

Code section 1108, subdivision (a). As in Miramontes, the two incidents were not unduly

remote in time, as defendant committed the prior sexual offense in 2007 and the current

one in 2011. (People v. Miramontes, supra, 189 Cal.App.4th at p. 1102 [four-year

passage of time did not make prior sexual offense unduly remote or dissimilar from

charged offense].) In both incidents, defendant attempted to engage teenagers in lewd

and lascivious behavior. Additionally, the trial court instructed the jury that they could



                                             18
consider the prior sexual offense evidence only if the People proved by a preponderance

of the evidence that the prior sexual offense occurred, and only to determine defendant’s

intent, plan and knowledge in committing the charged offenses. In doing so, the trial

court ensured that the jury did not confuse the issues, and was not misled to convict

defendant based solely on evidence of the prior sexual offense.

       On this record, we conclude the trial court’s admission of defendant’s prior sexual

offenses did not “‘“fall[] outside the bounds of reason.”’” (People v. Miramontes, supra,

189 Cal.App.4th at p. 1098.) Thus, the trial court did not abuse its discretion when it

admitted evidence of defendant’s prior uncharged sexual offenses, whether under

Evidence Code section 1101, subdivision (b), or Evidence Code section 1108,

subdivision (a).

F. The Trial Court Did Not Commit Cumulative Error

       Defendant argues the combined effect of the trial errors violated his right to due

process of law, thus requiring a reversal of the entire judgment. Although we agree that

defendant’s count 1 conviction for attempted unlawful sexual intercourse with a minor

was not supported by substantial evidence, we have rejected the remainder of defendant’s

claims of error. Hence, there is no cumulative error. (People v. Cook (2006) 39 Cal.4th

566, 608; see People v. Tully (2012) 54 Cal.4th 952, 1061 [rejecting claim of cumulative

error based on forfeiture and on the merits].)




                                             19
                                    IV. DISPOSITION

       Defendant’s conviction for attempted unlawful sexual intercourse with a minor in

count 1 is reversed, and the case is remanded to the trial court for resentencing. In all

other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RAMIREZ
                                                                                            P. J.


We concur:

McKINSTER
                           J.

MILLER
                           J.




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