People v. Wallis CA1/3

Filed 7/13/15 P. v. Wallis CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A140045
v.
NATHAN TIMOTHY WALLIS, (Contra Costa County
Super. Ct. No. 51211994)
Defendant and Appellant.

This is an appeal from judgment after a jury convicted appellant Nathan Timothy
Wallis of 31 counts of sexual abuse against a 15-year-old minor. Appellant challenges
the judgment on grounds of insufficiency of the evidence to support his conviction on
certain counts, improper admission of criminal propensity evidence, and erroneous
imposition of multiple punishments for an indivisible course of conduct. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
On April 29, 2013, an amended information was filed charging appellant with the
following 32 felony offenses: distributing lewd material to a minor (Pen. Code, § 288.2,
subd. (a)) (count one);1 contacting a minor to engage in lewd behavior (§ 288.3, subd.
(a)) (count two); arranging a meeting with a minor to engage in lewd behavior (§ 288.4,
subd. (b)) (count three); possession of material depicting a minor engaged in sex conduct
(§ 311.11, subd. (a)) (count four); committing a lewd act upon a child aged 14 to 15
(§ 288, subd. (c)(1)) (counts 5, 9, 10, 12, 15, 18, 20, 23, 26, 29 and 31); oral copulation of

1
Unless otherwise stated, all statutory citations herein are to the Penal Code.

1
a minor under the age of 16 (§ 288a, subd. (b)(2)) (counts 6, 11, 13, 16, 21, 24 and 28);
sexual penetration of a person under the age of 16 (§ 289, subd. (i)) (counts 7, 19 and 27);
and unlawful sexual intercourse (§ 261.5, subd. (d)) (counts 8, 14, 17, 22, 25, 30 and 32).
It was further alleged appellant was ineligible for probation. (§ 1203, subd. (e)(4).)
A jury trial began April 29, 2013, at which the following evidence was presented.
In the late evening of April 21, 2012, appellant, age 26, met and began chatting with
the victim on a social website called “Are You Interested?” Although the victim’s
website user profile listed her age as 18, she acknowledged to appellant that she
attended a local high school and appellant was thereafter able to learn from the
school’s website that she was a freshman. Ultimately, the victim acknowledged to
appellant during their online chat that she was 15 years-old. Appellant responded by
asking the victim whether she was “a cop,” and, when she replied, “no,” he warned
her: “ ‘I don’t prey on young girls, you could just leave me alone.’ ” Nonetheless,
they resumed chatting after the victim insisted she was a 15-year-old student, not a
police officer.
After several hours of online chatting, appellant arranged to meet the victim to
“fool[] around[.]” Appellant thus drove to the victim’s Pleasant Hill home sometime
after 3:30 a.m. and then took her to his house in Danville, where he lived with his
mother.2 At appellant’s house, the pair kissed outside before he carried the victim to the
front door. Once inside, they kissed again before removing their clothes. The pair then
proceeded to engage in numerous sexual acts in various locations in appellant’s house
and vehicle until the afternoon of April 25, 2012, when they agreed the victim should
leave and she contacted her father for a ride home. These sexual acts included at least
eight acts of intercourse, at least ten acts of oral copulation, at least three acts of digital

2
On the morning of April 22, 2012, the victim’s father discovered her missing and
her bedroom window open. He immediately called the police to report her missing.

2
vaginal penetration by appellant, one act of digital penetration of her anus by appellant, at
least six acts by appellant of touching her breasts, and at least six acts of kissing. 3
When the victim went home, she left in appellant’s house birth control pills and a
pair of underwear (as a “remembrance”).4 In addition, she emailed to appellant a
photograph of her with her breasts exposed.
In a subsequent recorded police interview, appellant made the following
statements. Initially, appellant denied knowing the victim was underage and insisted
their physical contact was limited to kissing, touching and cuddling. Later, he admitted
they touched each other over their underwear. Ultimately, however, he admitted
knowing she was 15 years-old when he first picked her up and having intercourse with
her: “She wanted to lose her virginity. [¶] . . . [¶] We had sex probably a total of four
times.”
Appellant also admitted that he digitally penetrated the victim; that she orally
copulated him; that he put his thumb on her anus; and that he orally copulated her. In
addition, a police search of appellant’s residence revealed hundreds of photographs of
under-age girls on his cellular telephone.
Appellant also admitted to police that, when he was 19 years-old, he was
convicted of sexual abuse of a minor (hereinafter, Jane Doe) under sections 288a,
subdivision (b)(1), and 261.5, subdivision (c). Specifically, in September 2004, appellant
went with a friend to pick up Jane Doe to take her to a BART station parking lot to

3
The victim stayed at appellant’s house for the periods of time he was at work.
During some of these times, appellant’s mother was also home, and appellant told the
victim to tell his mother she was 18 years-old. The victim, meanwhile, stayed in contact
with her parents with an iPad she had brought with her, telling her mother, “I’m in a safe
place,” and her father, “I’m safe. I’ll be home soon.”
4
The victim’s father picked her up at a nearby convenience store in the afternoon of
April 25, 2012. The next day, he found on the victim’s iPad a photograph of her with her
breasts exposed, as well as appellant’s name and address, which he provided to the
police. He also showed police the emails appellant and the victim had exchanged. At
trial, he testified that his daughter had problems with honesty, had previously run away,
and had been cutting school. Similarly, the victim’s mother testified that she had recently
had some problems with her daughter, including problems with her lying.

3
engage in sex. Appellant had met Jane Doe on the internet when she was 14 years-old
and they had twice before engaged in sexual intercourse. On this night, after arriving at
the BART station, he parked his vehicle and asked Jane Doe “to have sexual intercourse
with him and his friend.” After Jane Doe denied his request, appellant got out of the
vehicle and demanded that she do the same. He then told her, “You can either walk
home or you can give both of us oral sex.” At this point, he forced Jane Doe to orally
copulate him by grabbing her head and forcing it down towards his penis. When she
started to cry, appellant slapped her multiple times. Jane Doe then tried to leave, at
which point appellant shoved her to the ground and kicked her repeatedly.
According to a recorded statement appellant made to police following his 2004
arrest: “[Jane Doe and I] have done this at the BART station before . . . so we started
doing it and then she stopped and got up and started walking away and I asked her like
what was wrong and she [said] ‘I’m just gonna go home.’ ” “I don’t think I kicked her. I
mean, maybe.” “I put her against the wall but I didn’t like force her down. I kinda like
. . . guided her. But like, I mean, there was a little fight because that’s like what we
planned on doing.” “I pulled my penis out . . . and then I . . . grabbed her head and put it
down. She opened her mouth. It’s not like I . . . forced my penis in.” “I . . . ran up to her
and then pushed her to the ground and then maybe . . . I’m not sure if I kicked her.”
On May 28, 2013, the jury found appellant guilty of 31 of the 32 charged
offenses.5 On August 30, 2013, the trial court denied probation and sentenced appellant
to a total prison term of fourteen years, eight months. Specifically, as to count three, the
court imposed the middle term of three years; as to counts 8, 14, 17, 22, 25, 30 and 32,
the court imposed consecutive terms of one year (one-third the middle term); as to counts
6, 11, 13, 16, 21, 24 and 28, the court imposed consecutive terms of eight months; and as
to the remaining 16 counts (1-2, 5, 7, 9-10, 12, 15, 18-20, 23, 26-27, 29, 31), the court
imposed concurrent terms. A timely notice of appeal was filed on October 16, 2013.

5
Prior to the verdict, the trial court granted appellant’s motion to dismiss count
four.

4
 DISCUSSION
Appellant raises three primary arguments on appeal. First, appellant challenges
the sufficiency of the evidence to support seven counts of committing a lewd act upon a
child age 15, in violation of section 288, subdivision (c)(1). Second, he challenges as
prejudicial error the trial court’s admission of criminal propensity evidence pursuant to
Evidence Code sections 1101 and 1108. Finally, he challenges the court’s decision to
impose concurrent sentences for eleven lewd-act counts rather than staying these
sentences pursuant to section 654. We address each argument in turn below.

I. Sufficiency of the Evidence to Support Seven Counts of Committing a Lewd
Act Upon Child Age 15.
Appellant challenges the sufficiency of the evidence to support his conviction on
seven counts of committing a lewd act upon a child age 15 in violation of section 288,
subdivision (c)(1).6 Appellant reasons that the only evidence offered to prove these acts
was the victim’s testimony and statements to police, which lacked the requisite
specificity to support his conviction on these counts.7

6
Section 288 provides in relevant part as follows:
“(a) Except as provided in subdivision (i), any person who willfully and lewdly
commits any lewd or lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or member thereof, of a child
who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three, six, or eight years.
[¶] . . . [¶]
“(c)(1) Any person who commits an act described in subdivision (a) with the
intent described in that subdivision, and the victim is a child of 14 or 15 years, and that
person is at least 10 years older than the child, is guilty of a public offense and shall be
punished by imprisonment in the state prison for one, two, or three years, or by
imprisonment in a county jail for not more than one year. In determining whether the
person is at least 10 years older than the child, the difference in age shall be measured
from the birth date of the person to the birth date of the child.”
7
Appellant was convicted of eleven counts of committing a lewd act upon a child
age 15, in violation of section 288, subdivision (c)(1). Appellant does not challenge the
sufficiency of the evidence to support four of these eleven counts.

5
 When a defendant challenges the sufficiency of the evidence, the reviewing court
must examine the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence from which the jury could find the defendant
guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-77.)
Substantial evidence – meaning, evidence that is reasonable, credible and of solid value –
must support each essential element of an offense. A judgment of conviction will not be
set aside for insufficiency of the evidence to support the jury’s verdict unless it is clearly
shown there is no basis on which the evidence can support the jury’s conclusion. (Ibid.)
In determining whether substantial evidence exists, we do not reweigh the
evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses.
(People v. Jones (1990) 51 Cal.3d 294, 314 (Jones); see also People v. Cortes (1999) 71
Cal.App.4th 62, 71.) “Although it is the duty of the [trier of fact] to acquit a defendant if
it finds that circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate
court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988)
46 Cal.3d 919, 932-933.)
In assessing the sufficiency of the evidence in child molestation cases, our
Supreme Court has acknowledged these cases “frequently involve difficult, even
paradoxical, proof problems.” (Jones, supra, 51 Cal.3d at p. 305.) For example, children
molested over a substantial period of time by an adult residing in their home may have
“no practical way of recollecting, reconstructing, distinguishing or identifying by
‘specific incidents or dates’ all or even any such incidents.” (Ibid.) The Legislature
reacted to these proof problems in child molestation cases in part by enacting section
288.5 in 1989, which punishes a continuous course of sexual abuse rather than a

6
particular incident.8 (People v. Cortes, supra, 71 Cal.App.4th at p. 75 [“the statute
punishes repetitive activity as a course of conduct, defined as at least three acts over at
least three months”].) This statute provides, among other things, that the jury need not
unanimously agree “on which acts constitute the requisite number” as long as it
unanimously agrees that at least three acts occurred within the three-month period.
(Jones, supra, 51 Cal.3d at p. 310.) Appellant was not charged with violating this statute.
In a further effort to address problems of proof in child molestation cases, our
Supreme Court has also designed an evidentiary standard to more appropriately balance
defendants’ right to fair notice of the charges and to a reasonable opportunity to defend
against those charges with the State’s need to ensure that child molesters are not
immunized from substantial criminal liability merely because their victims, who are often
quite young, are unable to recall precise details concerning the incidents of abuse.
(Jones, supra, 51 Cal.3d at pp. 305, 315-316.) Under this evidentiary standard, a child
victim’s “generic” testimony may be sufficient to support a conviction for sexual abuse

8
Section 288.5 provides as follows:
“(a) Any person who either resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less than three months in
duration, engages in three or more acts of substantial sexual conduct with a child under
the age of 14 years at the time of the commission of the offense, as defined in subdivision
(b) of Section 1203.066, or three or more acts of lewd or lascivious conduct as defined in
Section 288, with a child under the age of 14 years at the time of the commission of the
offense is guilty of the offense of continuous sexual abuse of a child and shall be
punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
“(b) To convict under this section the trier of fact, if a jury, need unanimously agree only
that the requisite number of acts occurred not on which acts constitute the requisite
number.
“(c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section
1203.066, with a child under 14 years of age at the time of the commission of the
offenses, or lewd and lascivious acts, as defined in Section 288, involving the same
victim may be charged in the same proceeding with a charge under this section unless the
other charged offense occurred outside the time period charged under this section or the
other offense is charged in the alternative. A defendant may be charged with only one
count under this section unless more than one victim is involved in which case a separate
count may be charged for each victim.”

7
so long as the testimony describes: (1) “the kind of act or acts committed with sufficient
specificity, both to assure that unlawful conduct indeed has occurred and to differentiate
between the various types of proscribed conduct (e.g. lewd contact, intercourse, oral
copulation or sodomy)”; (2) “the number of acts committed with sufficient certainty to
support each of the counts alleged in the information or indictment (e.g., ‘twice a month’
or ‘every time we went camping’); and (3) “the general time period in which these acts
occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning
after he came to live with us’), to assure the acts were committed within the applicable
limitation period.” (Jones, supra, 51 Cal.3d at p. 316; see also People v. Matute (2002)
103 Cal.App.4th 1437, 1444-1445.)
Here, appellant acknowledges the general principle that a jury may rely upon a
minor’s “generic” testimony to convict a child molester if it meets the requirements set
forth in Jones, supra, 51 Cal.3d 294. However, he insists this principle only applies in
“those cases in which a resident child molester engages in a continuing course of conduct
[in violation of section 288.5], rendering it impossible for the minor to provide specific
testimony recounting those crimes.” Appellant reasons that the rationale for allowing
“generic” testimony in cases involving section 288.5 crimes (to wit, providing the victim
the benefit of a lesser degree of proof while providing the defendant the offsetting benefit
of subjecting him to only one conviction for a continuous course of conduct) does not
apply where, as here, the criminal conduct lasted just four days and the victim was able to
provide quite specific testimony with respect to most of the charged offenses. Appellant
thus concludes that, while the victim’s testimony may suffice to support his conviction on
seven counts of oral copulation, seven counts of unlawful intercourse and three counts of
digital penetration, her more generic testimony with respect to the seven section 288,
subdivision (c)(1) counts was not sufficient. We disagree.
As an initial matter, appellant cites no authority for his theory that generic
testimony is legally insufficient to support a conviction under section 288, subdivision
(c)(1), in non-resident sexual molestation cases or in cases, like this one, where the victim
provides specific testimony with regard to certain counts. Nor does Jones, supra, 51

8
Cal.3d 294, draw any such distinction or limitation. Rather, the Jones decision employs
language encompassing all child molestation cases, whether the molester resides with the
child or elsewhere and whether the child is five, fifteen or some age in between: “[T]he
particular details surrounding a child molestation charge are not elements of the offense
and are unnecessary to sustain a conviction. [Citations.] [¶] The victim . . . must describe
the kind of act or acts committed with sufficient specificity . . . . Moreover, the victim
must describe the number of acts committed with sufficient certainty to support each of
the counts alleged in the information . . . . Finally, the victim must be able to describe the
general time period in which these acts occurred . . ., to assure that acts were committed
within the applicable limitation period. Additional details regarding the time, place or
circumstances of the various assaults may assist in assessing the credibility or
substantiality of the victim’s testimony, but are not essential to sustain a conviction.”
(Jones, supra, 51 Cal.3d at pp. 315-316, 318.)
Thus, as this language reflects, among the concerns addressed by Jones was
whether a molester had continuous access to the victim, such that the victim’s ability to
recall and distinguish among different acts of molestation may have been impacted.
(Jones, supra, 51 Cal.3d at pp. 299, 322 [noting victim credibility is often the “true issue”
in molestation cases].) At the same time, contrary to appellant’s suggestions, the Jones
court was not concerned only with molesters who actually resided with their victims, or
engaged in sexual acts with victims so young that the victims’ ability to recall specific
acts was wholly impaired.9

9
The case law is in accord. For example, in People v. Matute, supra, 103
Cal.App.4th 1437, our colleagues in the Court of Appeal, Second District, Division Four,
held that a child victim’s generic testimony otherwise meeting the Jones standard was
sufficient to support a conviction where the charged offense was rape under section 261
rather than continuous sexual abuse under section 288.5. (People v. Matute, supra, 103
Cal.App.4th at pp. 1444, 1445 [“we reject appellant’s suggestion that generic testimony is
acceptable only when a defendant is charged under a ‘course of conduct’ statute but not
otherwise”].) The People v. Matute court also rejected the argument that generic
testimony is only permitted in cases involving very young victims, noting that “even a
mature victim might understandably be hard pressed to separate particular incidents of

9
 Even more importantly, however, we are not convinced the victim’s testimony in
this case regarding the challenged seven counts was in fact “generic,” as the term is used
in the relevant case law. To the contrary, the evidence presented at trial demonstrated
appellant repeatedly sexually abused the victim during a four-day period in late
April 2012. Specifically, as stated above, after appellant met and chatted with the victim,
age 15, on the internet, he picked her up in the early morning hours of April 21 and took
her back to his home, where she stayed as his guest for several days. According to the
victim’s testimony, appellant kissed her and fondled her breasts in numerous rooms of the
house during the course of these four days (including the bathroom, guestroom,
videogame room, and his bedroom). These acts were in addition to the numerous other
more serious sex acts the pair engaged in that are not subject to challenge on appeal. In
addition, appellant himself acknowledged that the pair cuddled each night before or after
engaging in the other sex acts. This evidence, which includes at least seven acts of
inappropriate touching, cuddling and kissing that occurred in conjunction with
appellant’s more serious sex acts, was sufficient to prove seven counts under section 288,
subdivision (c)(1). Nothing more was required. (See Jones, supra, 51 Cal.3d at pp. 315-
316, 318.)
Accordingly, viewing the evidence, as we must, in the light most favorable to the
People, we affirm appellant’s conviction. Simply put, the jury had a reasonable basis on
this record for finding beyond a reasonable doubt that appellant committed the charged
lewd acts, such that reversal is unwarranted.

II. Admission of Evidence of Appellant’s Propensity to Commit Sex Crimes.
Appellant also challenges one of the trial court’s evidentiary rulings. Over
appellant’s objection, the trial court admitted evidence relating to his prior commission of
sexual offenses against a minor. This evidence, set forth above, showed that, in 2004,

repetitive molestation by time, place or circumstance.” (Id. at p. 1445.) “The fact [that
the victim] was 15 and 16 [rather than under 14] at the time of the crimes involved here
makes little difference with regard to her inability to differentiate among the continual
rapes perpetrated by defendant.” (Id. at p. 1447.)

10
appellant entered a no contest plea to violations of section 288a, subdivision (b)(1) and
section 265.1, subdivision (d), following his sexual assault of a fourteen-year-old girl he
had initially met on the internet before beginning a sexual relationship with her. To
summarize, after appellant and this minor, Jane Doe, had begun their relationship, he and
a friend drove her to a BART station parking lot late one night, where he forced her to
orally copulate him, before slapping her, shoving her to the ground and kicking her.
The trial court found this evidence admissible under both Evidence Code sections
1101 and 1108, subdivision (b) (sections 1108 and 1101(b)), to prove appellant’s
predisposition to commit the charged offenses, as well as his intent, motive, and
knowledge of the victim’s age. In addition, the trial court applied Evidence Code section
352 (section 352), requiring balancing of the probative value of this evidence versus any
undue prejudice, before deciding on its admission. On appeal, appellant contends the
court’s ruling constituted prejudicial error, requiring reversal. The following legal
principles apply.
Section 1101, subdivision (a) provides: “Except as provided in this section and in
Sections . . . 1108 . . . , evidence of a person’s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or her conduct
on a specified occasion.” Subdivisions (b) and (c) of the statute permit admission of such
evidence, however, when relevant to attack or support a witness’s credibility or to prove
some fact other than a person’s character or disposition to commit crimes, such as the
person’s motive, identity, intent or common scheme or plan.
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 Section 352.” Section 352, in turn, gives the
trial court discretion to exclude evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption

11
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.”
On appeal, we do not disturb the trial court’s exercise of discretion in admitting
evidence “ ‘unless there is a manifest abuse of that discretion resulting in a miscarriage of
justice. [Citations.]’ People v. Milner (1988) 45 Cal.3d 227, 239.” (People v. Harlan
(1990) 222 Cal.App.3d 439, 446.) Having reviewed this record, we find no such abuse of
discretion.
As an initial matter, appellant asserts that section 1108 is facially unconstitutional
under both state and federal law. This argument, however, is quickly rejected. Our
Supreme Court, which we are bound to follow, has definitively rejected it, holding that
“the trial court’s discretion to exclude propensity evidence under section 352 saves
section 1108 from defendant’s due process challenge.” (People v. Falsetta (1999) 21
Cal.4th 903, 917; see also People v. Reliford (2003) 29 Cal.4th 1007, 1016 [finding “no
constitutional error” in CALJIC no. 2.50.01]. See also Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455 [California Supreme Court decisions are binding on
lower courts under the principle of stare decisis].) In addition, courts have likewise
soundly rejected defendants’ equal protection challenges to this statute. (People v. Fitch
(1997) 55 Cal.App.4th 172, 184-185 (Fitch); see also People v. Falsetta, supra, 21
Cal.4th at pp. 918-919 [noting with approval the Fitch court’s rejection of an equal
protection challenge to section 1108].) Accordingly, appellant’s constitutional challenge
fails and we turn to the more case-specific issue of whether the trial court properly
exercised its discretion under the Evidence Code to admit the propensity evidence.
The gist of appellant’s argument on this point is that, even if otherwise admissible
under section 1108 (which he assumes for purposes of appeal), the trial court should have
excluded this evidence under section 352 because it was substantially more prejudicial
than probative. He reasons that the prior sexual assault occurred remotely in time and
under different circumstances. In particular, appellant notes that the incident involving
Jane Doe in 2004 involved use of force, a highly inflammatory fact of no relevance here
given that the sexual acts between him and the victim were consensual and without force.

12
He further notes admission of this evidence may have increased the likelihood of the jury
confusing the issues and punishing him for his prior bad acts rather than the present ones.
We reject appellant’s arguments. California law is quite clear that evidence
offered under section 1108 will not be excluded on the basis of section 352 unless “ ‘the
probability that its admission will . . . create substantial danger of undue prejudice’ . . .
substantially outweighed its probative value concerning the defendant’s disposition to
commit the sexual offense or offenses with which he is charged and other matters
relevant to the determination of the charge.” (People v. Soto (1998) 64 Cal.App.4th 966,
984.) The same general rule applies under section 1101. (People v. Thornton (2000) 85
Cal.App.4th 44, 47-48 [“A criminal trial must always be fair. But it need not be fair in the
sense of a fair fight: one in which each side has an equal chance to win. We do not
handicap the parties to a criminal trial. If one side or the other has overwhelming
evidence, it is allowed to use as much as it chooses, subject only to exercise of the trial
court’s considerable discretion under Evidence Code section 352”].) Here, as the trial
court recognized, appellant committed the prior offenses, like those charged here, against
a minor he met on the internet before meeting her in person and engaging in sexual
conduct. While the first incident involved force and this incident did not, the fact
remains that both victims were young teenage females sexually abused on multiple
occasions by appellant. And while a number of years (to wit, eight years) passed
between appellant’s prior and current offense, we do not find this time period so great as
to render admission of the evidence prejudicial. (See People v. Soto, supra, 64
Cal.App.4th at p. 991 [“the passage of a substantial length of time does not automatically
render the prior incidents prejudicial”].)
Finally, the trial court instructed the jurors that “you may, but are not required to,
consider that evidence for the limited purposes of deciding whether or not: [¶] The
defendant was the person who committed the offenses alleged in this case; or [¶] . . .
acted with the [requisite] specific intent . . . ; or [¶] . . . had a motive to commit the
offenses . . . ; or [¶] . . . knew the age [of the victim] when he allegedly acted in this case;
or [¶] [his] alleged actions were the result of mistake or accident[,]” or “[he] had an

13
abnormal or unnatural sexual interest in children.” In addition, the court instructed the
jurors to, “[i]n evaluating this evidence, consider the similarity or lack of similarity
between the uncharged offenses and the charged offenses.” The court’s instructions
protected appellant against any undue prejudice.
Under these circumstances, we conclude the prejudice presented by the evidence
of appellant’s prior acts of sexual abuse was not undue, but merely the type inherent in all
propensity evidence. (See People v. Soto, supra, 64 Cal.App.4th at p. 992; cf. People v.
Harris (1998) 60 Cal.App.4th 727, 737 [“[p]ainting a person faithfully is not, of itself,
unfair”].) Our Legislature, in enacting sections 1101 and 1108, has recognized this
inherent prejudice and found it insufficient alone to render propensity evidence
inadmissible. (See People v. Soto, supra, 64 Cal.App.4th at p. 992.) We will not second-
guess the Legislature’s decision in this regard. Accordingly, we conclude the trial court
did not abuse its discretion in admitting this evidence.10

III. Imposition of Concurrent Sentences for the Section 288, subdivision (c)(1)
Offenses.
Appellant’s remaining argument is that the trial court erred by imposing
concurrent sentences for eleven counts of committing a lewd act in violation of section
288, subdivision (c)(1), rather than staying these sentences pursuant to section 654.
Section 654 provides that “[a]n act or omission that is punishable in different ways by

10
Appellant makes the additional argument that the prior incident of sexual abuse of
Jane Doe was not “sufficiently similar” to the current incident to permit admission of this
evidence under section 1101, subdivision (b). (See People v. Brandon (1995) 32
Cal.App.4th 1033, 1048-1049 [to be admissible to prove intent, prior misconduct must be
“sufficiently similar” to support the inference that the defendant probably harbored the
same intent in both incidents].) However, we disagree based on the same reasoning set
forth above – to wit, the two incidents had many similarities, including that they both
involved appellant’s sexual abuse of teenage females he met on the internet before
engaging in sexual relationships with them despite knowing their ages. Moreover, even
if we were to assume for the sake of argument that appellant’s contention had merit, we
would nonetheless affirm the trial court’s ruling. Given our conclusion that this evidence
was properly admitted under section 1108 and section 352, any error in admitting the
evidence under section 1101 would necessarily be harmless. (See People v. Branch
(2001) 91 Cal.App.4th 274, 280-281.)

14
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654.) As the California Supreme Court
explains, where different provisions of law punish in different ways a defendant’s single
criminal act or course of criminal conduct, section 654 bars multiple punishments based
upon that single act or course of conduct. (People v. Jones (2012) 54 Cal.4th 350, 352.)
“[T]he accepted ‘procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.’ ” (Id. at
p. 353.)
Generally, “ ‘[w]hether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654 depends on the intent
and objective of the actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than one.’
[Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “However, the rule is
different in sex crime cases. Even where the defendant has but one objective — sexual
gratification — section 654 will not apply unless the crimes were either incidental to or
the means by which another crime was accomplished. (People v. Perez (1979) 23 Cal.3d
545, 553 [153 Cal.Rptr. 40, 591 P.2d 63]; e.g., . . . People v. Greer (1947) 30 Cal.2d 589,
604 [184 P.2d 512] [removal of victim’s underclothing was merely incidental to
subsequent rape and did not warrant separate punishment] . . . .) [¶] But, section 654
does not apply to sexual misconduct that is ‘preparatory’ in the general sense that it is
designed to sexually arouse the perpetrator or the victim. [Citation.] That makes section
654 of limited utility to defendants who commit multiple sex crimes against a single
victim on a single occasion. As our Supreme Court has stated, ‘[M]ultiple sex acts
committed on a single occasion can result in multiple statutory violations. Such offenses
are generally ‘divisible’ from one another under section 654, and separate punishment is
usually allowed. [Citations.]’ (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 [36
Cal.Rptr.2d 627, 885 P.2d 1040].) If the rule were otherwise, ‘the clever molester could
violate his victim in numerous lewd ways, safe in the knowledge that he could not be

15
convicted and punished for every act.’ (Id. at p. 347.) Particularly with regard to underage
victims, it is inconceivable the Legislature would have intended this result.” (People v.
Alvarez (2009) 178 Cal.App.4th 999, 1006-1007.)
Here, appellant argues that section 654 bars the imposition of concurrent sentences
for the eleven lewd-act counts because there is “no evidence that any of [these] eleven
violations of section 288, subdivision (a) involved separate intents, or occurred on
‘separate occasions’ from the other seventeen sex acts [for which he was sentenced]. On
the contrary, all the evidence demonstrated that any kissing or fondling [to wit, the acts
underlying the section 288, subdivision (a) offenses] was preparatory to the ensuing sex
acts, without any interval of time or opportunity for reflection.”
We reject appellant’s argument based upon the authority set forth above.
Appellant does not argue or offer any evidence that his crimes “were either incidental to
or the means by which another crime was accomplished,” which, as explained above, is
one of the only situations in which a defendant convicted of sex crimes may take
advantage of section 654 to lessen his total sentence. (People v. Alvarez, supra, 178
Cal.App.4th at p. 1006.) Nor could appellant do so. The record makes clear that
appellant’s sexual misconduct underlying the concurrent sentences – to wit, kissing and
fondling minor prior to the more serious sex acts of intercourse, digital penetration and
oral copulation – was “ ‘preparatory’ in the general sense that it is designed to sexually
arouse the perpetrator or the victim.” (People v. Alvarez, supra, 178 Cal.App.4th at
p. 1006.) As such, section 654 does not apply. (Ibid.)

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 DISPOSITION
The judgment is affirmed.

_________________________
Jenkins, J.

We concur:

_________________________
Pollak, Acting P. J.

_________________________
Siggins, J.

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