Filed 5/10/16 P. v. Flores CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067587

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD253009)

JUAN MELESIO FLORES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert F.

O'Neill and Polly H. Shamoon, Judges. Affirmed.

         Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

         Juan Melesio Flores was charged in a second amended information with the

commission of 17 felony sex offenses against two minor males: two counts of oral
copulation of a person under 18 years old (counts 1-2: Pen. Code, § 288a, subd. (b)(l)),

11 counts of lewd act on a child of 14 or 15 years of age (counts 3-13: Pen. Code, § 288,

subd. (c)(l)), and four counts of oral copulation by a person over 21 years old with a

person under 16 years old (counts 14-17: Pen. Code, § 288a, subd. (b)(2)). Two of the

17 counts (counts 1-2) related to alleged victim Brandon J. and the remaining 15 counts

(counts 3-17) related to victim Derek M.

       On November 24, 2014, a jury convicted Flores of one count of oral copulation by

a person over 21 years old with a person under 16 years old, involving his oral copulation

of Derek in December 2013, in violation of Penal Code section 288a, subdivision (b)(2),

as charged in count 14. The jury could not reach a verdict as to the remaining 16 counts

(counts 1-13 & 15-17). The court declared a mistrial as to those counts and later granted

the People's motion to dismiss them.

       At sentencing the court followed the recommendations in the probation officer's

report, denied Flores probation, sentenced him to the upper term of three years in state

prison for his count 14 conviction of oral copulation by one over the age of 21 on a

person under the age of 16 (Pen. Code, § 288a, subd. (b)(2)), and ordered him to register

as a sex offender (Pen. Code, § 290).

       Flores appeals, contending (1) the court abused its discretion and violated his

federal constitutional right to due process by admitting nine photographs of naked young

men taken in bathrooms that were downloaded from his cell phone, and by admitting

testimony describing sex acts between men shown in two other photographs downloaded



                                             2
from the phone, because this evidence was unduly prejudicial under Evidence Code1

section 352 and thus inadmissible under section 1101, subdivision (b) (section 1101(b));

(2) his sentence must be reversed because the court abused its discretion by denying

probation and imposing the upper prison term of three years; and (3) the court erred by

ordering him to register for life as a sex offender. We affirm the judgment.

                               FACTUAL BACKGROUND

       A. The People's Case

       1. Derek's testimony

       Derek was 16 years old when he testified at trial in this case in late 2014. In 2009,

when he was about 11 years old, Derek joined Flores's karate dojo in Tierrasanta. At

first, Derek was in a class for younger children that had lessons twice a week. At around

age 13, Derek moved into a class of 13- to 17-year-olds that met three times each week.

       Flores, who was then in his thirties, cultivated a friendship with Derek as he got

older, and Derek viewed him both as a friend and as a father figure. Derek confided in

Flores and shared personal details of his life, such as the fact that he suffered from

Asperger's, his parents divorced, and he was not able to bond with his stepfather.

       Derek testified that when he was about 13 or 14, he began giving Flores shoulder

massages at Flores's request. Within a year or so, Flores started giving Derek

massages.




1      All further statutory references are to the Evidence Code unless otherwise
indicated.
                                              3
       Sometime around January 2013, Flores began touching Derek's genitals. Derek

testified that the first time this happened, Flores was sitting next to him in Flores's dojo

office while he (Derek) was standing and playing a computer game. Flores slid his hand

up Derek's shorts and boxer underwear, and rubbed Derek's scrotum, skin to skin.

       After this first incident, Flores touched Derek this way at least once a month for a

few seconds to several minutes each time. Derek testified this usually happened when

they were alone in the dojo before or after class, but Flores also did it once in his car

while giving Derek a ride to the dojo. Flores would have "ninja nights" for his students

to celebrate special occasions like tournaments or holidays. A ninja night was a party at

the dojo where the students could eat and play video games and stay all night if they

wanted to.

       Derek testified that, at a ninja night in October 2013 after most of the children

were asleep and the others were preoccupied with video games, Flores asked him to

massage his back. This was something that Flores had not previously asked him to do.

       Two months later, on December 14, 2013, Flores held a Christmas party at the

dojo. The party ended at about 1:00 p.m., and Derek, who was then 15 years old, was left

alone with Flores to clean up for a ninja night later that same day. Derek testified that

Flores locked the doors, turned off the lights, and asked Derek for a massage. Flores

made sure that he and Derek were in a spot where no one looking in from the outside

could see them. Derek began massaging Flores's back and then it progressed to a full-

body massage. Flores stuck his hand up Derek's shorts during the massage and touched

his scrotum.

                                              4
       Derek testified that Flores then told him it was his turn. Flores told him to take off

his shorts and, after Derek removed his shorts, Flores put Derek's penis and scrotum in

his mouth and gave him a "blow job."2 Derek had an erection, and Flores remarked that

Derek was "hard" and "big." Flores also rubbed Derek's penis with his hands. This

sexual activity stopped when two of the students returned and pounded on the locked

door. Derek testified that this was "kind of like a saving grace."

       Derek testified that although he was "still in shock" about that had happened, he

decided to stay for the ninja night. He lied when he texted his mother that everything was

fine. Derek testified he was concerned that calling the police to the dojo would "scar[e]

all of the kids in the ninja night."

       During the ninja night, Flores sat down next to Derek and touched his scrotum.

Flores repeatedly asked Derek to come into his office, and Derek tried to avoid doing that

by not responding or telling Flores, "Later." Derek eventually relented and went into the

office with Flores. Flores had moved his desk to make room for an air mattress. Once

Derek was inside the office, Flores used a pen to jam the door closed. Flores told Derek,

"Surprise me." Derek thought Flores wanted some cake, but Flores clarified by saying,

"Butt, mouth or penis."

       Derek testified he then lay face down on Flores, who was also face down, and

Derek used his penis to rub Flores's buttocks for a few minutes. Flores then turned over

and Derek orally copulated him for several minutes until Flores ejaculated. Flores also


2     This act of oral copulation was the basis for Flores's conviction of count 14 (Pen.
Code, § 288a, subd. (b)(2)) in this case.
                                             5
orally copulated him, but Derek did not ejaculate. Derek told Flores he would do it

himself and started to masturbate in Flores's chair. Derek stopped masturbating when

somebody knocked on the door. Derek went to the bathroom after telling Flores he was

going to finish masturbating there, but Derek did not ejaculate there. He then resumed

playing video games until he fell sleep.

       Derek also testified that when he awoke later that night at about 1:00 a.m., Flores

was standing over him. Derek went back to sleep. Later, Derek woke up and found

Flores lying next to him. Flores pulled down the front of Derek's shorts and rubbed his

penis against Derek's penis. Flores then orally copulated Derek, "switch[ing]" between

sucking on Derek's penis and sucking on Derek's scrotum. Flores told Derek, "I want you

to blow a load on me while I am sucking it." Derek did not ejaculate.

       At around 9:00 a.m. the next morning, Derek's mother picked him up at the dojo.

She could tell something was wrong. As they began driving away from the dojo, Derek,

who was visibly shaking, told his mother what happened. Derek's mother then drove him

to the police department to report Flores's conduct, and then they drove to the hospital for

a sexual assault examination. At the hospital, various parts of Derek's body were

swabbed for DNA.

       Erik Bieschke, a criminalist and an expert on forensic DNA analysis, testified that

there was mixture of only two people's DNA on Derek's penis, one of which was from a

predominant, overwhelming contributor. Derek's DNA profile matched the

nonpredominant contributor. Flores's DNA profile matched the predominant contributor.

The chance of the predominant profile occurring randomly in a Hispanic person like

                                             6
Flores3 is one in 21 quadrillion, which Bieschke characterized as "extremely rare." He

also testified that a portion of one of Derek's penile swabs in this case from which

Flores's DNA profile was extracted also tested positive for amylase, which is a major

component of saliva.

       Flores's DNA profile was also consistent with the major contributor to a mixed

DNA sample taken from Derek's scrotum. In addition, DNA consistent with that of

Flores was found on Derek's neck, chest, and hands. (3 RT 372-373.)

       2. C. and Brandon

       Brandon was 19 years old when he testified at trial in this case in late 2014. In

2012, when Brandon was still 16 years old, Flores engaged in the same kind of grooming

behavior and escalating physical touching with Brandon, who, like Derek, was one of

Flores's karate students. Flores's physical contact with Brandon progressed from

massages when Brandon was about 15 years old to the touching of Brandon's genitals

when he has 16, and then to Flores's oral copulation of Brandon on two occasions. Both

instances of oral copulation occurred in Flores's dojo. Flores also photographed Brandon

when Brandon was not wearing a shirt. Brandon stopped going to the dojo after the

second oral copulation incident in late 2012 or early 2013 when Brandon was 17 years

old. In early January 2013 Brandon told his parents what had happened, and his father

called the police.




3      Flores testified he is Hispanic.
                                             7
          Under sections 1101(b) and 1109, the court admitted the testimony of C.T., who

testified he also had been sexually molested by Flores. Beginning in 2010, when he was

15 or 16 years old, C. worked at Flores's dojo for about two years. Flores groomed C.

and engaged in escalating physical contact that included mutual massages with their

shirts off, cuddling, Flores's hugging and kissing C., and his touching C.'s buttocks and

penis. On one occasion when C. was around 16 or 17, he texted Flores that he was going

to take a shower and Flores responded, "Cool, take a picture." C. texted the photo to

Flores.

          3. Sexually suggestive and explicit photographs recovered from Flores's cell
phone

          A forensic examination of Flores's cell phone resulted in the recovery of

photographs depicting naked or semi-naked boys that, as the court noted during in limine

proceedings, appeared to be somewhere between 16 and 19 or 20 years old, but possible

under 18. The following nine photographs found on Flores's phone, which were admitted

into evidence, showed: (1) a boy wearing only underwear with his hand inside the front

of his underwear (exhibit 23); (2) a naked boy in the shower covering his genitals (exhibit

24); (3) a male standing in a bathroom and wearing only underwear (exhibit 25); (4) a

naked young male with a semi-erect penis posing sideways and taking a selfie

photograph of himself in a bathroom mirror (exhibit 26); (5) a young naked male holding

his erect penis and taking a selfie photograph of himself in a bathroom mirror (exhibit

29); (6) a young male standing sideways, holding his erect penis, and taking a selfie

photograph of himself in a bathroom mirror (exhibit 30); (7) a young male wearing only


                                               8
underwear and pulling his underwear down to expose part of his erect penis, and taking a

selfie photograph of himself in a bathroom mirror (exhibit 31); (8) a shirtless boy in blue

jeans posing in front of a mirror (exhibit 32); and (9) a young naked male with an

erection in the shower (exhibit 33).

       Also recovered from Flores's cell phone was a photograph of two men engaged in

anal sex, and another photograph of two men engaged in oral sex. The jurors did not see

these photographs, but they did hear a brief description of them. Specifically, Detective

Kevin McNamara of the San Diego Police Department testified there was "a photograph

on the phone . . . depict[ing] an act of anal sex between two [naked] men" and "a

photograph that showed an act of oral copulation between two men."

       B. Defense Case

       Flores testified in his own defense. He admitted that he downloaded from the

Internet the photographs of boys that were retrieved from his cell phone, and he testified

he did so because "[i]t is porn" and "I am attracted to men." He also admitted he

downloaded the photographs depicting anal sex between two men.

       Flores further admitted he sometimes massaged his students, including C. and

Brandon, or had them massage him, but he claimed he did so for legitimate reasons.

       Flores denied that he committed any sexual acts with Derek, Brandon, or C. He

portrayed his relationship and any physical contact with them as that of a platonic

mentor, friend, or father figure.




                                             9
                                      DISCUSSION

    I. ADMISSION OF EVIDENCE OF SEXUALLY SUGGESTIVE AND EXPLICIT
            PHOTOGRAPHS DOWNLOADED FROM FLORES'S CELL
                         PHONE (§§ 1101(B), 352)

       Challenging his conviction, Flores contends the court abused its discretion and

violated his federal constitutional right to due process by admitting the nine photographs

of naked young men taken in bathrooms that were downloaded from his cell phone, and

by admitting testimony describing sex acts between men shown in two other photographs

downloaded from the phone that were not shown to the jury, because this evidence was

irrelevant and unduly prejudicial under section 352 and, thus, it was inadmissible under

section 1101(b). We reject this contention.

       A. Background

       The prosecutor filed a motion in limine asking the trial court to allow the

introduction under section 1101(b) of sexually suggestive photographs downloaded from

Flores's cell phone and showing young men (other than Derek and Brandon) who (the

court found) appeared to be somewhere between 16 and 19 or 20 years old, who were

naked or partially clothed in a bathroom, and some of whom had an erect penis; and two

other photographs showing sex acts between males.

       Defense counsel objected that the photographs were not relevant and they were

unduly prejudicial within the meaning of section 352 (discussed, post).

       The court overruled the defense objections to the photographs showing the young

men in a bathroom or shower, admitted into evidence nine of those photographs, and

excluded the two photographs that depicted anal and oral sex but allowed testimony

                                              10
describing those photographs. Finding the photographs and related testimony relevant

and not unduly prejudicial, the court explained:

          "Again, I think the photographs are relevant to prove the charge
          because there . . . are a number of allegations that involve touching
          and the intent behind the touching, so I do think they are relevant.

          "With regard to [section] 352, I think the test is not whether they are
          prejudicial. The only reason the People are trying to admit them is
          because they are prejudicial.

          "The test is [whether] they are unduly prejudicial based on the
          probative value, and I think when you look at the pictures, it is clear
          that there is a connection with what happened in this case. So are
          they prejudicial? Yes, in that they tend to show and prove the
          People's case, which is prejudicial to the defendant.

          "Are they unduly prejudicial? I don't think so, especially now that
          we have narrowed down the photographs to the bathroom and/or
          shower scenes, which is consistent with the evidence in this case.
          [¶] . . .

          "I . . . was most concerned in narrowing down the photographs.
          They go to the heart of the intent in this case, especially given that
          all of the pictures that the court received [from the prosecutor after
          she narrowed them] are of boys that looked to be somewhere
          between 15 and 18 or 19 years old.

          "They are all in some unclothed state, most of them completely
          naked, but certainly with erect penises, and not just erect penises, but
          somehow holding or depicting or showing and bringing attention to
          the fact they are erect penises.

          "So with that, I think all 11 photographs are relevant and I will allow
          those."4 (Italics added.)




4     Ultimately, as discussed, ante, in the factual background, nine of the photographs
were admitted in evidence and the court allowed testimony describing the other two
photographs that were not shown to the jury.
                                             11
       B. Applicable Legal Principles

       a. Section 1101

       Section 1101, 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.

Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts

is inadmissible when it is offered to show that a defendant had the criminal disposition or

propensity to commit the crime charged. (§ 1101, subd. (a).)

       Section 1101(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." (Ewoldt, supra, 7 Cal.4th at p. 393, fn.

omitted.) Specifically, section 1101(b) provides that nothing in that section "prohibits the

admission of evidence that a person committed a crime, civil wrong, or other act when

relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake or accident . . .) other than his or her disposition

to commit such an act."

       "[T]he admissibility of evidence under section [1101(b)] depends on the degree of

similarity between the uncharged act and the charged offense." (People v. Zepeda (2001)

87 Cal.App.4th 1183, 1210 (Zepeda), quoting Ewoldt, supra, 7 Cal.4th at p. 402.) The

California Supreme Court has explained that for evidence of uncharged acts to be

admissible under section 1101(b) to prove such facts as motive, intent, identity, or

common design or plan, the charged offenses and uncharged acts must be "sufficiently

                                             12
similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18

Cal.4th 349, 369.) "The least degree of similarity (between the uncharged act and the

charged offense) is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p.

402.) To be admissible to prove intent, the uncharged misconduct need only be

"sufficiently similar [to the charged offense] to support the inference that the defendant

'"probably harbor[ed] the same [or similar] intent in each instance."'" (Ibid.; see People

v. Memro (1995) 11 Cal.4th 786, 864-865 (Memro) [evidence of defendant's uncharged

conduct of possessing sexually explicit photographs of young males ranging from

prepubescent to young adult admissible as probative to show intent to sexually molest

young boy].)

       b. Section 352

       If the trial court determines that uncharged misconduct is admissible under section

1101(b), it must then determine whether the probative value of the evidence is

"'substantially outweighed by the probability that its admission [would] . . . create

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'"

(Ewoldt, supra, 7 Cal.4th at p. 404; § 352.)

       "The prejudice which exclusion of evidence under [section 352] is designed to

avoid is not the prejudice or damage to a defense that naturally flows from relevant,

highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or

damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial."

The "prejudice" referred to in [section 352] applies to evidence which uniquely tends to

evoke an emotional bias against the defendant as an individual and which has very little

                                               13
effect on the issues. In applying section 352, "prejudicial" is not synonymous with

"damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).)

       c. Standard of review

       We review the trial court's rulings under sections 1101 and 352 for an abuse of

discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We will not disturb the trial

court's exercise of discretion except upon a showing that it "exercised its discretion in an

arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

       C. Analysis

       The court did not abuse its discretion by admitting into evidence the nine

sexually suggestive cell phone photographs of nude and seminude young males, and

Detective McNamara's testimony describing two other cell phone photographs

showing sex acts between males, because this evidence was admissible under section

1101(b) to show motive and intent. Flores was charged with (among other offenses)

11 counts of committing a lewd act on Derek, a child of 14 or 15 years of age, in

violation of Penal Code section 288, subdivision (c)(l). To prove Flores committed these

offenses, the prosecution was required to prove beyond a reasonable doubt (among other

things) that he willfully committed the alleged act "with the intent of arousing, appealing

to, or gratifying the lust, passions, or sexual desires of [himself] or the child." (Pen.

Code, § 288, subd. (a).)




                                              14
       Here, the challenged cell phone evidence was admissible under section 1101(b)

because it was relevant to the issue of whether Flores acted "with the intent of

arousing, appealing to, or gratifying the lust, passions, or sexual desires of [himself] or

[Derek]" (Pen. Code, § 288, subd. (a)). Memro, supra, 11 Cal.4th 786, is illustrative. In

Memro, the California Supreme Court held that "sexually explicit . . . photographs . . . of

males ranging in age from prepubescent to young adult" were admissible to show the

defendant's intent to sexually molest a young boy in violation of Penal Code section 288

even though some of the photographs "depict[ed] youths in a manner that [was] not

sexually suggestive." (Memro, at p. 864.) The Supreme Court reasoned that the

"[d]efendant's intent to violate [Penal Code] section 288 was put at issue when he pleaded

not guilty to the crimes charged" (ibid.), and "the photographs, presented in the context of

defendant's possession of them, yielded evidence from which the jury could infer that he

had a sexual attraction to young boys and intended to act on that attraction." (Id. at p.

865.) The Memro court concluded that "[t]he photographs of young boys were

admissible as probative of defendant's intent to do a lewd or lascivious act" (ibid.) with

the victim, who was 12 years old at the time the charged offenses were committed. (Id. at

p. 811.)

       Similarly here, Flores's intent to violate Penal Code section 288 was put at issue

when he pleaded not guilty to the counts alleging he violated that section, and the

evidence of the photographs retrieved from his cell phone, which were "presented in the

context of [his] possession of them, yielded evidence from which the jury could infer that


                                             15
he had a sexual attraction to young [males] and intended to act on that attraction."

(Memro, supra, 11 Cal.4th at p. 865.)

       Flores attempts to distinguish Memro by arguing that some of the photographs

admitted in that case depicted prepubescent boys but, here, none of the cell phone

photographs depicted prepubescent boys. He asserts that, "[b]ecause the photos in

[this] case were not clearly of underage children they were much less relevant to show

an intent to molest young males."

       Flores's attempt to distinguish Memro is unavailing. The photographs of

prepubescent boys were relevant to the issue of intent in Memro because the victim

was a prepubescent 12-year-old boy. (See Memro, supra, 11 Cal.4th at p. 811). Here,

neither of the two alleged victims─Derek and Brandon─was a prepubescent boy at the

time Flores allegedly committed the charged acts of sexual molestation. They were

young males in their mid-teens. The sexually suggestive photographs in question here

depict naked or semi-naked young males that, as the court noted during the hearing on

the People's in limine motion, appeared to be somewhere between 16 and 19 or 20 years

old, but "maybe under 18."

       Flores contends Detective McNamara's testimony describing the two

photographs showing sex acts between males was inadmissible under section 1101(b)

because he "did not deny he was homosexual" and, thus, "this evidence was not highly

probative of any contested issue and it did not relate to the specific facts alleged in the

instant case, the molestation of teenage males." This contention is unavailing. Flores

                                              16
testified he "downloaded" the two photographs because he was "attracted to men."

However, his admission he is attracted to men did not render those photographs irrelevant

on the issue of whether he acted with the requisite "intent of arousing, appealing to, or

gratifying the lust, passions, or sexual desires of [himself] or [Derek]." (Pen. Code,

§ 288, subd. (a).) The issue regarding intent was not whether Flores was sexually

attracted to men; it was whether he was sexually attracted to teenage boys. (Ibid.) In

any event, as the court observed during the hearing on the People's in limine motion,

the males in all of the photographs, including the males in the two photographs

depicting sex acts, appeared to be somewhere between 16 and 19 or 20 years old, but

"maybe under 18."

       Flores also contends the evidence of the cell phone photographs should have

been excluded under section 352 because "this evidence was more prejudicial than

probative." This contention is unavailing. The sexually suggestive photographs and

Detective McNamara's testimony were damaging to Flores's defense precisely because

they were highly probative, not because they "'uniquely tend[ed] to evoke an

emotional bias against the defendant as an individual'" with "'very little effect on the

issues.'" (Karis, supra, 46 Cal.3d at p. 638.) Although some of the photographs

shown to the jury showed teenage boys "in sexually graphic poses [and] would

undoubtedly be disturbing to most people[,] we cannot say [they were] substantially

more prejudicial than probative, for [their] value in establishing [Flores's] intent to

violate section 288 was substantial." (See Memro, supra, 11 Cal.4th at p. 865.) The

                                             17
record shows the prosecutor selected the bathroom and shower photographs, and the

court found them probative and admissible, in part because they tended to corroborate

C.'s testimony that Flores asked him to take a picture of himself in the shower. As noted,

the nine photographs admitted in evidence did not show any sex acts. In addition, the

challenged evidence was not inflammatory by comparison to the testimony of Derek,

Brandon, and C. about the acts of sexual molestation Flores allegedly committed.

       Flores's reliance on People v. Page (2008) 44 Cal.4th 1 is misplaced. The

defendant in that case was convicted of first degree murder with a lewd act special

circumstance and of violating Penal Code section 288. (Page, supra, 44 Cal.4th at p. 6.)

The victim was a six-year-old girl who had been brutally beaten, suffocated, sexually

assaulted, and strangled to death. (Ibid.) The trial court admitted three pornographic

magazines (out of more than 100 "hard-core" and "soft-core" pornographic magazines

found in the defendant's apartment), two of which depicted post-pubescent women

depicted to look younger and one of which showed women in bondage scenes. (Id. at p.

13 & fn. 7.) The Page court did not resolve the issue of whether the trial abused its

discretion under section 352 in admitting the magazines and held that any error in their

admission was not prejudicial. (Id. at p. 41.) The Court of Appeal acknowledged the

magazines were probative of the defendant's intent, but noted they had less probative

value than pornographic images in other cases. (Id. at p. 40.) The Page court observed

that, although the models in the magazines were staged to look younger than they really

were, none of them was made to appear as young as the six-year-old victim. (Ibid.)



                                            18
          Here, the challenged evidence of the cell phone photographs is more probative

than the evidence the Page court addressed. Unlike the magazine photographs in Page,

which depicted adult models who were much older than the child victim, the photographs

in this case depicted teenage boys, not models, who were about the same age as the

victims.

          For all of the foregoing reasons, we conclude the court did not abuse its

discretion or violate Flores's federal constitutional rights by admitting under section

1101(b) the challenged evidence of photographs found on Flores's cell phone.

                            II. CLAIMS OF SENTENCING ERROR

          Flores also contends his sentence must be reversed because the court abused its

discretion by (1) denying probation and (2) imposing the upper prison term of three

years. In response, the Attorney General argues that (1) Flores forfeited his claims of

sentencing error by failing to object in the trial court, and (2) the court did not abuse its

discretion. We conclude Flores forfeited his claims of error, which also fail on the

merits.

          A. Applicable Legal Principles

          The California Rules of Court5 list the criteria a trial court considers in deciding

whether to grant or deny probation. (Rule 4.414.) They also provide that, when choosing

a prison term, the sentencing court may consider specified circumstances in aggravation

or mitigation and any other factor reasonably related to the sentencing decision. (Rule



5         All rule references are to the California Rules of Court.
                                                19
4.420; see rules 4.421 ["Circumstances in aggravation"], 4.423 ["Circumstances in

mitigation"].)

       1. Standard of review

       "A sentencing court enjoys broad discretion in determining whether to grant or

deny probation. A defendant who is denied probation bears a heavy burden to show the

trial court has abused its discretion." (People v. Mehserle (2012) 206 Cal.App.4th 1125,

1157.) Relevant criteria enumerated in the California Rules of Court pertaining to the

grant or denial of probation "must be considered by the sentencing judge, and will be

deemed to have been considered unless the record affirmatively reflects otherwise."

(Rule 4.409.) A trial court's denial of probation after consideration of those criteria on

the merits is almost invariably upheld. (Mehserle, at p. 1157; 3 Witkin & Epstein, Cal.

Criminal Law (4th ed. 2012) Punishment, § 638, p. 1037.)

       A trial court's sentencing decision is reviewed for abuse of discretion. (People v.

Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) "[D]iscretion is abused whenever the

court exceeds the bounds of reason, all of the circumstances being considered." (People

v. Giminez (1975) 14 Cal.3d 68, 72.) The existence of a single aggravating factor is

legally sufficient to support the imposition of an upper term. (People v. Black (2007) 41

Cal.4th 799, 813.)

       B. Analysis

       1. Forfeiture

       We first conclude that Flores forfeited his claim that the court abused its

sentencing discretion by denying probation and imposing the upper prison term of three

                                             20
years for his count 14 conviction. In support of his claim of sentencing error, Flores

asserts the court "err[ed] by failing to grant probation and imposing the upper

term . . . because the mitigating factors so heavily unquestionably outweighed the

aggravating factors." Thus, Flores is complaining that the court misweighed the various

mitigating and aggravating factors. He acknowledges that he "did not object after

sentence was pronounced."

       In People v. Scott (1994) 9 Cal.4th 331 (Scott), the California Supreme Court held

that a party in a criminal case may not raise on appeal "claims involving the trial court's

failure to properly make or articulate its discretionary sentencing choices" (id. at p. 353)

if the party did not object to the sentence at trial, provided the party had a "meaningful

opportunity to object." (Id. at p. 356.) The Scott rule applies to "cases in which the

stated reasons allegedly do not apply to the particular case, and cases in which the court

purportedly erred because it double-counted a particular sentencing factor, misweighed

the various factors, or failed to state any reasons or give a sufficient number of valid

reasons." (Id. at p. 353, italics added.)

       People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216 (Dorsey)

illustrates what constitutes a failure by a trial court to provide a "meaningful opportunity

to object" at sentencing. In Dorsey, the trial court placed the defendant on probation in

the "interests of justice," even though he was presumptively ineligible. (Id. at pp. 1221-

1222.) After asking the defendant whether he accepted the terms of probation, the trial

court immediately declared a recess without hearing from either party. (Id. at pp. 1223-

1224; see People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez).) Because of the

                                             21
immediate recess, the Dorsey court held that "the prosecutor had no opportunity,

meaningful or otherwise, to object." (Dorsey, at p. 1224; see Gonzalez, at p. 752.)

       Here, Flores forfeited his claim that the court abused its sentencing discretion in

denying probation and imposing the upper prison term of three years because he is

complaining on appeal that the court misweighed the various mitigating and aggravating

factors, he had a meaningful opportunity to object to the court's discretionary sentencing

choices during the sentencing hearing, and he did he not raise his objections to the

sentence in the trial court. (Scott, supra, 9 Cal.4th at pp. 353, 356.) The record shows

the court did not announce a tentative ruling at the sentencing hearing, and it denied

probation and pronounced sentence after considering the probation officer's report,

Flores's statement in mitigation, the People's statement in aggravation and a written

statement by the victim (Derek), and after hearing additional arguments by both counsel

and the testimony of Derek's mother.

       The record also shows that, after pronouncing the sentence and stating its reasons,

the court did not immediately declare a recess. Rather, the court had a discussion with

Flores's counsel and the prosecutor about various matters, during which defense counsel

could have raised objections concerning the sentence, including the court's weighing of

mitigating and aggravating circumstances. The court stated it could "set a status hearing

or just retain jurisdiction," and the prosecutor responded by asking the court, "May I ask

the victim's mother really quickly what she wishes?" The court replied, "Yes." Defense

counsel responded, "We don't need a status hearing at this time." The court then



                                             22
discussed other matters with both counsel. Flores acknowledges on appeal that he "did

not object after sentence was pronounced."

       Unlike the trial court in Dorsey, the court in this case did not immediately declare

a recess without hearing from either party. Nothing in the record suggests that the court

would not have allowed counsel to object to the manner in which the court weighed the

aggravating and mitigating circumstances in deciding to deny probation and impose the

upper term.

       Citing Gonzalez, supra, 31 Cal.4th 745, Flores claims he did not forfeit his claim

of sentencing error because "the trial court stated it was denying probation and imposing

an upper term sentence based upon the criminal planning and the taking advantage of a

position of trust factors without indicating the sentence was tentative and without telling

the parties they could object."

       Flores's reliance on Gonzalez is unavailing. In Gonzalez, as the California

Supreme Court implicitly recognized in that case, the defendants had a meaningful

opportunity to object after the trial court pronounced the sentences and stated its reasons,

as shown by the fact that they did object on one of the three grounds they raised on

appeal. (Gonzalez, supra, 31 Cal.4th at p. 755.) Even though the trial court had not

issued a tentative ruling regarding its intended discretionary sentencing choices, the

Gonzalez court applied the Scott forfeiture rule and held that because the defendants did

not object to their sentences in the trial court on two of the three grounds they asserted on




                                             23
appeal, they could not raise on appeal claims based on those two grounds.6 (Gonzalez, at

p. 755.)

       For all of the foregoing reasons, we conclude that by failing to object in the

superior court to the court's discretionary decisions to deny probation and to impose the

upper three-year prison term after having an opportunity to do so at the sentencing

hearing, Flores forfeited the right to seek review of those decision on appeal. (Scott,

supra, 9 Cal.4th at pp. 353, 356.)

       2. Merits

       Even if Flores had not forfeited his claim, it would fail on the merits. The court

identified the same two reasons for denying probation and sentencing Flores to the upper

term: (1) the criminal planning and sophistication of his crime, and (2) his taking

advantage of a position of trust. Flores does not dispute that these are valid factors

supporting the denial of probation and the imposition of the upper term. (See rules

4.414(a)(8) & (9), 4.42l (a)(8) &(11); Scott, supra, 9 Cal.4th at p. 350, fn. 12 [observing

that "the same fact may be used both to deny probation and to impose the upper term"].)

Thus, that the mitigating factors purportedly outnumbered the aggravating factors is of no

moment here because a single aggravating factor is enough. (Sandoval, supra, 41 Cal.4th



6       The Supreme Court, however, stated that, "[b]ecause the [trial] court had not
previously notified the parties that it intended to rely on defendants' firearm use as a
reason for its sentence, it should have more clearly given the parties a meaningful
opportunity to object by saying it was announcing proposed sentences for each defendant
and its reasons for the sentences, that the prosecutor and defendants were entitled to
object, and that if the objections were meritorious it would alter the sentences
appropriately." (Gonzalez, supra, 31 Cal.4th at p. 755, italics added.)
                                             24
at pp. 846-847 [a trial court "will be required to specify reasons for its sentencing

decision, but will not be required to cite 'facts' that support its decision or to weigh

aggravating and mitigating circumstances"]; People v. Black, supra, 41 Cal.4th at p. 813

[existence of a single aggravating factor is legally sufficient to support imposition of an

upper prison term].)

               III. LIFETIME SEX OFFENDER REGISTRATION ORDER

       Last, Flores contends the court erred by ordering him under Penal Code section

290 to register for life as a sex offender. We reject this contention.

       A. Background

       The Sex Offender Registration Act (Pen. Code, § 290 et seq.) (Act) allows

discretionary sex offender registration for defendants convicted of unlawful sexual

intercourse with a minor (Pen. Code, §§ 261.5, 290.006),7 but imposes mandatory sex

offender registration for defendants convicted of crimes involving other types of sexual




7      Penal Code section 261.5, subdivision (a) provides: "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. For the purposes of this section, a
'minor' is a person under the age of 18 years and an 'adult' is a person who is at least
18 years of age." Penal Code section 290.006 provides: "Any person ordered by any
court to register pursuant to the Act for any offense not included specifically in
subdivision (c) of Section 290, shall so register, if the court finds at the time of
conviction or sentencing that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification. The court shall state on the record
the reasons for its findings and the reasons for requiring registration."

                                              25
activity with a minor (Pen. Code, § 290, subds. (b),8 (c)9). (Johnson v. Dept. of Justice

(2015) 60 Cal.4th 871, 874 (Johnson).)

       In this case, Flores was convicted in November 2014 of one count of oral

copulation by a person over 21 years old with a person under 16 years old (Derek) in

violation of Penal Code section 288a, subdivision (b)(2), one of the listed sex offenses for

which lifetime sex offender registration is mandatory under the Act. (Pen. Code, § 290,

subds. (b), (c).) Flores committed this sex offense in late 2013.

       At sentencing in February 2015, the court, citing Johnson, supra, 60 Cal.4th 871,

which had been decided in January of that year, ordered Flores to register as a sex

offender under the mandatory registration provisions Penal Code section 290, finding it

"ha[d] no discretion." The court also found that, even if it had discretion under Penal

Code section 290, "based on the facts and circumstances, what took place in this case,



8      Penal Code section 290, subdivision (b) provides: "Every person described in
subdivision (c), for the rest of his or her life while residing in California, or while
attending school or working in California, as described in Sections 290.002 and
290.01, shall be required to register with the chief of police of the city in which he or
she is residing, or the sheriff of the county if he or she is residing in an unincorporated
area or city that has no police department, and, additionally, with the chief of police of
a campus of the University of California, the California State University, or
community college if he or she is residing upon the campus or in any of its facilities,
within five working days of coming into, or changing his or her residence within, any
city, county, or city and county, or campus in which he or she temporarily resides, and
shall be required to register thereafter in accordance with the Act." (Italics added.)

9         As pertinent here, Penal Code section 290, subdivision (c) provides: "The
following persons shall be required to register: [¶] Any person who . . .
is . . . convicted in any court in this state . . . of . . . any act punishable under
Section . . . 288a."
                                            26
how long it took and [Flores's] grooming [of Derek] that took place, it is an appropriate

case for lifetime [sex offender] registration."

       B. Analysis

       The law regarding mandatory sex offender registration under Penal Code section

290 was in a state of flux during the time this case was moving forward in the trial court.

When Flores committed his sex offense against Derek in late 2013, the California

Supreme Court's decision in People v. Hofsheier (2006) 37 Cal.4th 1185 applied. In

Hofsheier, the defendant claimed the provision in Penal Code section 290 for

mandatory sex offender registration of persons convicted of nonforcible oral

copulation with a minor 16 or 17 years of age (Pen. Code, § 288a, subd. (b)(1))

violated his rights under the equal protection clauses of the federal and state

Constitutions because persons convicted of the seemingly more serious crime of

unlawful sexual intercourse with a minor of 16 or 17 years of age (Pen. Code,

§ 261.5) were subject to discretionary sex offender registration under former section

290, subdivision (a)(2)(E) (now section 290.006). The Supreme Court agreed and

held in Hofsheier that the mandatory lifetime sex offender registration requirement set

forth in Penal Code section 290 for persons convicted of violating Penal Code section

288a, subdivision (b) violated the equal protection clauses of the federal and state

Constitutions. (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1206-1207.)

       However, in January 2015─the month before Flores was sentenced in this

case─the Supreme Court disapproved Hofsheier in Johnson, supra, 60 Cal.4th 871,


                                              27
thereby restoring the mandatory sex offender registration requirement for offenders like

Flores who violate Penal Code section 288a. Addressing the issue of whether its decision

should apply retroactively, the Johnson court observed that "[a] decision of a court

overruling a prior decision is typically given full retroactive effect." (Johnson, supra,

60 Cal.4th at p. 888.) The Supreme Court explained that there is "no reason to deny

retroactive application where, as here, a sex offender has taken no action in justifiable

reliance on the overruled decision." (Id. at p. 889.) The Supreme Court concluded

there was "no unfairness or inequity in rejecting [the defendant's] equal protection

challenge based on [its] overruling of Hofsheier" (ibid.) because the defendant had

pleaded guilty to his offense in 1990, he initialed and signed a declaration

acknowledging his obligation to register as a sex offender under Penal Code section

290, and Hofsheier was decided in 2006. (Johnson, at p. 889.) Thus, the defendant's

"decision to plead [guilty] and his obligation to register as a sex offender did not result

from any reliance on the state of the law as [it] articulated in Hofsheier." (Ibid.) In a

footnote, the Johnson court indicated it was not deciding whether its "decision

overruling Hofsheier should be given retroactive application in all cases." (Id. at p. 889,

fn. 11.)

       Here, Flores contends the court's order imposing the sex offender registration

requirement should be reversed because "it would be unfair to [retroactively] apply

the Johnson decision to require [him] to register as a sex offender because his

conviction of oral copulation in violation of Penal Code section 288a[, subdivision]

                                            28
(b)(2) and the attendant [mandatory] requirement that he register is the result of

reliance on the ruling in Hofsheier." He asserts that when he allegedly committed this

offense in December 2013, and when he was convicted of this offense in November

2014, under Hofsheier "mandatory registration under Penal Code section 290 was not

required because it violated a defendant's right to equal protection of the law and Johnson

had not yet been decided."

       In response, the Attorney General argues that Flores "does not explain how his

conviction was the result of his reliance on the ruling in Hofsheier." The Attorney

General further argues that "[i]f [Flores] is saying that he would not have orally copulated

Derek but for Hofsheier, there is unsurprisingly no evidence in the record supporting such

an absurdity."

       In his reply brief, Flores reiterates it would be unfair to retroactively apply the

holding in Johnson because, "[i]f [he] had known that the law would change to require

mandatory sex offender registration he may have decided to work out a plea agreement

long before the law changed and pled guilty to something to avoid the registration

requirement."

       We reject Flores's claim that the court's retroactive application of Johnson at

sentencing in this case was "unfair" and erroneous. "A decision of a court overruling a

prior decision is typically given full retroactive effect." (Johnson, supra, 60 Cal.4th at p.

888.) The Supreme Court explained in Johnson that there is "no reason to deny

retroactive application where . . . a sex offender has taken no action in justifiable reliance

on the overruled decision." (Id. at p. 889, italics added.) Here, there is nothing in the
                                              29
record to suggest that Flores justifiably relied on the overruled Hofsheier decision. There

is only Flores's own unsupported assertion on appeal that "[i]f [he] had known that the

law would change to require mandatory sex offender registration he may have decided to

work out a plea agreement long before the law changed and pled guilty to something to

avoid the registration requirement." We conclude that Flores's unsupported assertion on

appeal is insufficient to show that he justifiably relied on Hofsheier. (See Johnson, at p.

889.) Thus, we also conclude that Johnson retroactively applies in this case, and, thus,

the court properly imposed the mandatory sex offender registration requirement under

Penal Code section 290, subdivisions (b) and (c).

       In light of our conclusions, we need not address Flores's additional claim that "[he]

should be relieved from the trial court's finding under its discretionary authority that he

must register." We also reject his contention that Hofsheier was correctly decided and,

thus, "imposition of the mandatory [sex offender] registration requirement in [his] case

violates [his] Fourteenth Amendment right to equal protection of the laws." We are

bound by the decisions of our Supreme Court, including its Johnson decision overruling

Hofsheier. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

       For all of the foregoing reasons, we affirm the order requiring Flores under Penal

Code section 290 to register for life as a sex offender.




                                             30
                                 DISPOSITION

     The judgment is affirmed.



                                               NARES, J.

WE CONCUR:


McCONNELL, P. J.


McINTYRE, J.




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