People v. Deichman CA5

Filed 10/11/23 P. v. Deichman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F083573
Plaintiff and Respondent,
(Super. Ct. No. CR-18-002974)
v.

DAVID JAMES DEICHMAN, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Kellee C.
Westbrook, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
The trial court sentenced defendant David James Deichman to a total term of
53 years and eight months to life in prison after a jury convicted him of sexually abusing,
annoying, and molesting his minor cousins. On appeal, defendant argues that (1) the trial
court erred in denying his motion to exclude his statement to law enforcement,
(2) counsel was ineffective by failing to move to suppress digital evidence seized from
defendant’s cellular phone, (3) the trial court abused its discretion in admitting evidence
of uncharged sexual offenses, and (4) the trial court violated his right to due process by
instructing the jury that they could use uncharged nonsexual offense conduct as evidence
of his propensity to commit the charged offenses.
We conclude the trial court erred in admitting evidence that defendant unlawfully
attempted to video activities in his neighbor’s bedroom under Evidence Code
section 1108 but find that admission of such evidence was harmless, reject defendant’s
other arguments, order a correction be made to the abstract of judgment, and otherwise
affirm the judgment.
PROCEDURAL BACKGROUND
The District Attorney of Stanislaus County filed an information on May 15, 2019,
charging defendant with aggravated sexual assault of a child (Penal Code, § 269,
subd. (a)(4);1 counts 1–3), lewd acts upon a child (§ 288, subd. (a); counts 4–5), using a
minor for posing or modeling involving sexual conduct (§ 311.4, subd. (c); count 6), and
annoying and molesting a child (a misdemeanor) (§ 647.6, subd. (a)(1); count 7). The
information also alleged, as to counts 1–3, that the crimes involved the same victim on
separate occasions (§ 667.6, subd. (d)). Defendant pleaded not guilty and denied the
allegations.

1 Undesignated statutory references are to the Penal Code.

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 After a nine-day trial, the jury returned a verdict of guilty on August 13, 2021, as
to all counts and found true the allegation that the abuse involved the same victim on
separate occasions. The trial court sentenced defendant to a total term of 53 years and
eight months to life in prison on October 22, 2021, as follows: consecutive terms of 15
years to life as to counts 1–3, six years as to count 4; 2 years as to count 5; eight months
as to count 6; and a concurrent term of 180 days in jail as to count 7. The trial court also
ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole
revocation restitution fine (§ 1202.45).2
Defendant filed a timely notice of appeal on November 18, 2021.
FACTS

I. Prosecution evidence.

A. Jane Doe 1
Doe 1 testified that defendant was her older cousin,3 the son of her mother’s
brother. When Doe 1 was 12 or 13 years old, in approximately August 2017, defendant
first behaved inappropriately with her. Doe 1 lay on the floor in her living room with
defendant, her mother, brothers, Jane Doe 2, and Jane Doe 3, who were all in the dark
and either watching a movie or sleeping. Defendant was on the couch behind where she
lay. Defendant grabbed her arm and raised it until it was resting on his thigh by is private
area. She tried to move her hand away, but defendant repeatedly placed it back on his
thigh and possibly his penis. This continued for approximately 10 to 15 minutes.

2 The indeterminate abstract of judgment, at paragraph 12, reflects a $900 probation report
fee that is also reflected in the October 22, 2021 minute order. The trial court’s oral
pronouncement of judgment did not order defendant to pay this fee, and we shall order it
stricken. When a discrepancy exists between a trial court’s oral pronouncement of judgment and
the minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181,
185.) We shall order that the abstract of judgment be amended to conform to the trial court’s
oral pronouncement.
3 The parties stipulated that defendant was born in August 1993.

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Defendant then went outside to smoke. Defendant returned and lay next to her on the
floor. Eventually, the only individuals left in the room were Doe 1, defendant, and
Doe 1’s seven and eight-year-old brothers who were asleep on the couch. Defendant
moved Doe 1’s blanket to cover them both, and she saw his penis was exposed.
Defendant placed Doe 1’s hand on his thigh again and then moved her hand to his penis.
She pulled her hand away and turned on her side away from him. Doe 1 tried to ignore
defendant and pretended to be asleep, but defendant massaged her back and lower back.
Doe 1 was too scared and confused to tell defendant to stop.
Defendant acted inappropriately towards Doe 1 a second time a few months later
while she was at his house. Doe 1 had been watching a movie with defendant and a few
other family members and lay on the couch. When defendant returned from the rest
room, Doe 1 and defendant were the only individuals still awake. Defendant stood next
to where Doe 1 lay on the couch and grabbed her face as she pretended to be asleep.
When Doe 1 would not open her mouth, defendant turned her head towards him, plugged
her nose, which forced her to open her mouth, and put his penis into her mouth.
Defendant then moved his body back and forth for approximately five minutes.
Defendant also put his hand down her shirt and underneath her bra. Doe 1 was very
scared and pretended to be asleep.
In February 2018, defendant placed his penis into Doe 1’s mouth again. Doe 1
was sleeping over at defendant’s house on the couch. Defendant moved his hand around
on her shirt while rubbing her breast, he lifted her shirt, and she saw a flash consistent
with defendant having taken her picture. Defendant plugged her nose to force her to open
her mouth and placed his penis inside. Defendant then moved his body back and forth.
Doe 1 tried to move her head away, but defendant forcefully pushed it back. The incident
lasted approximately five minutes, and Doe 1 was scared. After one of these incidents,
defendant ejaculated into her mouth.

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 The fourth incident occurred in May 2018 while Doe 1 was sleeping in the
backyard of defendant’s residence with her sister and her best friend. At approximately
3:00 a.m., defendant lay next to her. Defendant moved Doe 1’s face to see if she was
awake, but she pretended to be asleep. Defendant leaned into Doe 1’s face, plugged her
nose, and put his penis into her mouth. Defendant then moved his body back and forth.
Doe 1 did not tell her family about it until approximately June 2018, when Doe 2
told Doe 1 that the same thing had happened to Doe 2. They contacted the police the
following day.

B. Jane Doe 2
Doe 2 was 21 years old at the time of trial and testified that defendant was her
older cousin on her mother’s side. Defendant behaved inappropriately with her when she
was eight and 15 years old. When Doe 2 was 15 years old and living at defendant’s
house, she lay on the bed in defendant’s mother’s room while watching television.
Defendant entered and lay down next to her. Defendant told her to use her hand and trace
her fingers along him. Defendant then asked her to touch his penis and moved her hand
to his penis, inside his pants but over his underwear. Doe 2 was scared, but felt she had
to do as he asked because he was older than her. Another uncle walked into the room and
was very upset, although he did not see everything. Defendant got into an argument with
the uncle. Defendant told Doe 2 to tell his mother that their uncle was lying. Around this
same time, defendant would message Doe 2 and ask her to send him photographs of her
naked breasts.
Defendant also acted inappropriately when Doe 2 was eight years old, in 2008.
Doe 2 was in defendant’s room with Doe 3, who was eight years old at the time.
Defendant was 15 or 16 years old. Defendant offered them candy if they would suck his
penis. Defendant told Doe 2 and Doe 3 that they would play a game to see who could
suck his penis the longest. Doe 2 felt that she had to perform oral sex. Defendant also

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showed them a cartoon of Disney pornography where the cartoon characters were nude
and having sexual intercourse. This happened between five and 10 times when she was
eight years old. Doe 2 eventually told defendant’s mother, but she instructed them not to
say anything about it.
Doe 2 told Doe 1’s mother about the abuse after Doe 3 had opened up to others as
to what had happened.

C. Jane Doe 3
Doe 3 was 23 years old at the time of trial. She testified that she grew up with
defendant and their parents were friends. When Doe 3 was 10 years old, defendant told
her to go into his bedroom because he wanted a massage. She went into the room with
Doe 2. Defendant closed the door to the room and turned on a porn movie. They danced
around him and then defendant lay on the bed and had them massage his back with his
pants down and buttocks exposed. Defendant turned over, touched himself, and put a
lubricant on himself. Then defendant had Doe 3 place her mouth on his penis and, when
she was uncomfortable, had her try it in different positions. She did this two times for
approximately three or four minutes each time.
Doe 3 saw Doe 2 put her mouth on defendant’s penis but tried not to look
thereafter. Doe 3 testified Doe 2 told defendant’s mother what had happened, but that
Doe 3 denied it when asked.
In 2018, Doe 3 told Doe 1’s mother that defendant sexually abused her and Doe 2
because she knew that Doe 1 and her cousins frequented defendant’s house and was
concerned for them.

D. Defendant’s Statement
Modesto Police Detective Randy Angle interviewed defendant at his home and
videoed the interview using his body camera. The 16-minute interview was admitted into
evidence and played for the jury.

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 The video showed that defendant answered his front door after Angle knocked
several times. Angle stated, “Hi, how are ya? Are you David?” Standing at the door,
defendant responded, “Yeah.” Angle identified himself and asked, “Uh, do you have a
second to talk?” Defendant responded, “Yeah.” Defendant’s dog was at the door, and
Angle asked, “Can you put the—can you just shut the door really quick?” Defendant
stepped out onto his porch and closed the door. A second officer stood just off the porch
leaning against a post in front of the residence. Angle requested and received permission
to pat down defendant to check for weapons; defendant was in possession of a phone.
Angle explained that he was there to ask about an incident that may have occurred
with Doe 1, whom defendant identified as his cousin. Defendant denied knowledge of
any incident involving Doe 1 and a trampoline. Upon specific questioning, defendant
denied any sexual relationship with Doe 1, exposing his penis to her, and taking
photographs of her while she was naked. Defendant claimed that he would never do that
to his cousin and then stated, “No, I swear to God, put that on my soul, I’d never in my
life do that.” When Angle asked why Doe 1 said such things, defendant opined that she
was mad that he would not take her and her friends to get something to eat. Angle
commented that it was weird to think that they would make these accusations for that
reason. Defendant told Angle that he was aware that Doe 1’s friend was also making the
same type of complaint, but he did not know her name.
Angle asked defendant about his other cousin who was either 18 or 20 years old at
that time, and defendant identified her as Doe 2 but denied ever touching her
inappropriately. Angle asked if defendant had his cousins perform oral sex on him and
he responded, “Never in my life.” Angle then inquired about Doe 3 and asked if she had
performed oral sex on him. Defendant said that Doe 3 performed oral sex on him at her
house when he was nine years old and she was four or five years old. Defendant
described that Doe 3 was watching a porn movie while he slept, and he woke to find her

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trying to perform oral sex on defendant. Angle expressed surprise that a four-year-old
was watching a porn movie.
Defendant told Angle that defendant could not describe the incident any better
because he could not remember it. Angle told defendant that multiple people accused
him of inappropriately touching them or making them orally copulate him and that, “It’s
gonna be better off … I’ve already set your statement in stone right now, okay?” Angle
added, “It’s probably better if you tell the truth now. Okay, because if you wanna look
like a liar later, or you just wanna come clean and tell us the truth from the start. Okay?”
Defendant denied doing anything and offered to take a lie detector test.
Angle told defendant that he would not be placed under arrest that day, but that
defendant was under investigation and that Angle would follow up with more interviews
and seize defendant’s phone. Angle advised defendant that they would analyze his phone
and be able to recover any deleted photographs or text messages, and Angle asked
defendant if wanted to tell them anything else. Defendant denied that his phone had
photographs of his cousins.
Angle then told defendant that it appeared that defendant had something else that
he wanted to say. Defendant admitted that when he was 15 years old, he asked Doe 2 to
touch him. Angle thanked defendant for the admission and advised him that Angle
believed it was still going on and that defendant had an issue that required talking to
someone, but Angle could not do anything about it without knowing the whole truth.
Angle told defendant that Angle was just trying to ascertain the truth and that if they
believed defendant was “fully guilty, right off the bat,” Angle would have put defendant
in handcuffs.
Angle told defendant that he needed to tell Angle “what’s going on with Jane
Doe 1.” When defendant responded that he had discussed the matter with his mother,
Angle interrupted and said, “[W]e’re not gonna, listen—okay.… You’ve already been
cool. Look, you told us about the stuff with Jane Doe 2. Are you in handcuffs? I’m

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willing to help you out, okay? I just need to know what happened with Jane Doe 1.”
Angle advised defendant that he was digging himself a hole and Angle would walk away,
but Angle asked defendant one final time what happened with Doe 1.
Defendant said that Doe 1 was lying because of incidents when Doe 1 took his
drink and threatened to tell her mother that defendant allowed her to drink alcohol and
when he told Doe 1 that he would not take her and her friends to get something to eat
anymore. Angle interrupted and told defendant that this was defendant’s only time to tell
the truth and that Angle had witnesses that knew the truth. Defendant admitted “that did
all happen,” “[t]he picture” and “everything,” but he deleted the pictures. Defendant then
stated that he took pictures, but the pictures did not show his penis in their mouths, and
they were not naked. Angle told defendant that Angle had witnesses to the events and
that he would be able to recover any deleted photographs.
Angle reminded defendant that he was not in handcuffs. Defendant responded, “I
will be after, right?” Angle replied, “I’ll be fully honest with you after, yeah, absolutely.”
Angle said that he was not going to handcuff defendant yet, promised that Angle had
been lenient with defendant, and asked whether defendant felt intimidated by Angle.
Defendant then admitted that he took pictures of Doe 1 with his penis in her mouth on
two different occasions.

E. Digital Evidence
Modesto Police Detective Jon Evers extracted data from defendant’s cellular
phone and recovered several videos and digital pictures that had been deleted from the
memory card contained within the phone. One video, approximately 33 minutes and 22
seconds long, appeared to have been filmed from a camera hidden in a bedroom or
bathroom and showed a woman walking back and forth wearing a towel. The woman
first appeared nine minutes into the video, and the room went dark 11 minutes and 34
seconds later. Evers also found 54 pictures of a woman asleep on a couch created on

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May 30, 2018, between 3:03 and 3:57 a.m., and several short videos depicting the same
image. Doe 2 identified herself as the woman asleep in the photographs but had no idea
that anyone had taken pictures of her.

II. Defense evidence.

A. Amanda Bossom
Amanda Bossom, defendant’s mother, testified that Doe 2 is her sister’s daughter.
Doe 1 is the daughter of Bossom’s husband’s sister, and Doe 3 is the daughter of
Bossom’s best friend. Neither Doe 2 nor Doe 3 ever told Bossom that defendant had
behaved in a sexually inappropriate manner with them.

B. Defendant
Defendant testified that Doe 2 and Doe 3 came into his room and orally copulated
him at their own instigation. It happened only once because he knew that it was wrong,
and he never offered them any enticements to do it. Defendant admitted that he removed
his clothes to expose his penis during the incident.
Defendant denied that he had been orally copulated by Doe 1. Defendant testified
that he had fought with Doe 1 because he objected to her suggestion that he could “have”
her friend and Doe 1 could “have” defendant’s friend when Doe 1 and her friend were
only 13 years old, and he was older.
Regarding his statement to police officers, defendant also explained that he
eventually admitted the conduct because the officers refused to believe he did not do it.
Defendant did admit that he lied when he told the officers that Doe 3 tried to orally
copulate him when she was four years old.
During cross-examination, defendant admitted that, in 2018, he took several
“[p]eeping Tom-like videos” of people who were unaware that they were being videoed.
One video was taken of a woman while she was in his house. Defendant also admitted
that he videoed a female neighbor’s bedroom from a camera he hid on a fence and that he

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had hoped to video her naked. The prosecutor entered two such videos into evidence
with the stipulation that no individual was actually videoed. Defendant admitted that he
set up a camera in failed attempts to video his female neighbor naked several times and
videoed her one time while she was fully clothed. The prosecutor questioned defendant
regarding a total of eight such videos, and defendant admitted that he set the camera up at
night to avoid detection and to video inside his neighbor’s bedroom. Defendant testified
that he wanted to capture his neighbor naked so that he could view it later for his own
sexual pleasure.
Defendant also admitted that he videoed Doe 2 sleeping for over an hour because
he was still interested in her and wanted to look at the pictures later. He agreed that it is
“nasty” to have minors, including individuals related to him, give him oral sex.
DISCUSSION

I. The trial court did not err in denying defendant’s motion to exclude his
statement to law enforcement.
Defendant argues that the trial court erred in ruling that he was not in custody and
entitled to advisements pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)
before he was interviewed by Detective Angle. He also argues that his statement was
inadmissible because it was not voluntary. We reject both arguments.

A. Background4
Defendant moved to suppress his prearrest statement both because he had not
received Miranda warnings and because his statement was involuntary. The trial court
reviewed defendant’s videoed interview with Detective Angle and the transcription of the
interview, the substance of which we set forth, ante, in part I.D.

4 We do not consider Angle’s later trial testimony for purposes of reviewing the trial
court’s ruling and review only the evidence provided to the trial court at the time of its ruling.
(See People v. Robertson (2012) 208 Cal.App.4th 965, 991.)

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 The trial court denied defendant’s motion to exclude his statement to law
enforcement, concluding that defendant was not in custody for purposes of Miranda and
that his statement was voluntary based upon the following facts: (1) defendant was not in
handcuffs; (2) defendant was told several times that he was not under arrest; and
(3) given the opportunity, defendant did not acknowledge or say that Angle was
aggressive with him.

B. Defendant Was Not In Custody When Interviewed By Detective Angle
and Miranda Warnings Were Not Necessary

1. Standard of review and applicable law.
On review of a trial court’s decision on a Miranda issue, “ ‘ “we accept the trial
court’s determination of disputed facts if supported by substantial evidence, but we
independently decide whether the challenged statements were obtained in violation of
Miranda.” ’ ” (People v. Henderson (2020) 9 Cal.5th 1013, 1023.) When part or all of
the questioning was recorded, the facts are undisputed, and we independently review the
trial court’s factual determinations. (People v. Jackson (2016) 1 Cal.5th 269, 339.)
To protect a suspect’s Fifth Amendment right against self-incrimination, Miranda
requires that, before a custodial interrogation, law enforcement must advise a suspect of
their right to remain silent, that any statement made can be used against them in a court of
law, their right to the presence of an attorney, and that if they cannot afford an attorney,
one will be appointed. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085–1086.)
“A statement obtained in violation of a suspect’s Miranda rights may not be admitted to
establish guilt in a criminal case.” (People v. Jackson, supra, 1 Cal.5th at p. 339.)
Miranda applies only to custodial interrogations, and whether a person is in
custody hinges on whether a reasonable person in their shoes would feel free to leave.
(Miranda, supra, 384 U.S. at p. 444; Howes v. Fields (2012) 565 U.S. 499, 508–509.)
There is no dispute that the interview here was an “interrogation,” which is defined as
express questioning or other words and actions on the part of law enforcement that law

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enforcement should know are reasonably likely to elicit an incriminating response from a
suspect. (Rhode Island v. Innis (1980) 446 U.S. 291, 299–301.)
“An interrogation is custodial, for purposes of requiring advisements under
Miranda, when ‘a person has been taken into custody or otherwise deprived of his [or
her] freedom of action in any significant way.’ [Citation.] Custody consists of a formal
arrest or a restraint on freedom of movement of the degree associated with a formal
arrest. [Citations.] When there has been no formal arrest, the question is how a
reasonable person in the defendant’s position would have understood his [or her]
situation.” (People v. Moore (2011) 51 Cal.4th 386, 394–395 (Moore).) The inquiry is
objective; it does not depend “on the subjective views harbored by either the
interrogating officers or the person being questioned.” (Stansbury v. California (1994)
511 U.S. 318, 323.)
All the circumstances of the interrogation are relevant to determining whether it
was custodial. (Moore, supra, 51 Cal.4th at p. 395.) “No one factor is dispositive.
Rather, we look at the interplay and combined effect of all the circumstances to
determine whether on balance they created a coercive atmosphere such that a reasonable
person would have experienced a restraint tantamount to an arrest.” (People v. Aguilera
(1996) 51 Cal.App.4th 1151, 1162 (Aguilera).) The most relevant circumstances
typically include: “whether contact with law enforcement was initiated by the police or
the person interrogated, and if by the police, whether the person voluntarily agreed to an
interview; whether the express purpose of the interview was to question the person as a
witness or a suspect; where the interview took place; whether police informed the person
that he or she was under arrest or in custody; whether they informed the person that he or
she was free to terminate the interview and leave at any time and/or whether the person’s
conduct indicated an awareness of such freedom; whether there were restrictions on the
person’s freedom of movement during the interview; how long the interrogation lasted;
how many police officers participated; whether they dominated and controlled the course

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of the interrogation; whether they manifested a belief that the person was culpable and
they had evidence to prove it; whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to pressure the suspect; and
whether the person was arrested at the end of the interrogation.” (Ibid.)

2. Analysis.
The circumstances of the interview in this case did not amount to a restraint on
defendant’s freedom of movement tantamount to a formal arrest. Deputy Angle knocked
on defendant’s door and greeted him with a friendly “Hi,” and Angle referred to
defendant as “buddy.” Angle was accompanied by only one other officer who stood on
the walkway casually leaning against a post. Angle started to suggest that defendant
restrain his dog, but then suggested that defendant close the door and speak to Angle on
the porch. Angle asked for permission to check defendant for weapons, and defendant
agreed to the request. The questioning occurred on defendant’s front porch, and he was
not handcuffed or otherwise restrained. At the outset of the interview, Angle advised
defendant that Angle was investigating an incident with defendant’s cousin, and Angle
asked defendant questions in a friendly and open tone of voice. Though Angle expressed
skepticism at times, he was not accusatory, aggressive, or loud. (See Aguilera, supra,
51 Cal.App.4th at p. 1164 [“whether the questioning was brief, polite, and courteous or
lengthy, aggressive, confrontational, threatening, intimidating, and accusatory” is “highly
significant” in considering the issue of custody].)
Approximately six minutes and 33 seconds into the interview, Angle advised
defendant that he would not be placed under arrest, but Angle intended to seize
defendant’s phone and it would be searched for evidence. (See In re Anthony L. (2019)
43 Cal.App.5th 438, 446 [factors consistent with a noncustodial interrogation included
officer telling 15-year-old suspect that he was “ ‘not under arrest right now’ ”].) While
Detective Angle did advise defendant that the investigation would continue, Angle used

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an apologetic tone and did not imply that defendant would be arrested immediately.
Moreover, “[e]ven a clear statement from an officer that the person under interrogation is
a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are
free to come and go until the police decide to make an arrest.” (Stansbury v. California,
supra, 511 U.S. at p. 325.) Most importantly, Detective Angle at no time told defendant,
or even insinuated, that defendant was unable to leave unless he told Angle what Angle
wanted to hear.
Angle provided defendant another opportunity to address whether the phone
would contain evidence. Defendant admitted an incident with Doe 2 wherein he asked
her to touch him. At approximately eight minutes into the interview, Angle thanked
defendant for that information, indicated that more had happened, and suggested
defendant might have an issue and should talk to someone. Angle assured defendant that
he was searching for the truth and reminded defendant that he was not in handcuffs.
Approximately eight minutes and 55 seconds into the interview, Angle interrupted
defendant as defendant denied his conduct, advised defendant that Angle would walk
away if defendant continued to lie, and offered defendant one last chance to explain his
conduct with Doe 1. Angle’s demeanor was neither loud, accusatory, nor aggressive but
attempted to cajole defendant to tell the truth.
Defendant described to Angle two incidents where defendant and Doe 1 disagreed,
and Angle told defendant that Angle had additional witnesses who confirmed the sexual
incidents. Defendant then admitted that it all happened but backtracked as to whether he
had photographed the incidents. Angle reminded defendant that he was not in handcuffs
and claimed that Angle had been honest with defendant. Angle asked whether defendant
was intimidated by Angle, and defendant nodded in agreement when Angle stated that he
had been cool with defendant.
The interview was only approximately 16 minutes long, was not intense or
confrontational, and the Supreme Court has upheld as noncustodial an interview that was

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one hour and 45 minutes. (Moore, supra, 51 Cal.4th at p. 402.) Throughout the entire
interview, Angle spoke with defendant in a low and nonthreatening tone and reminded
him that he was not under arrest. While defendant argues that Angle unconstitutionally
seized defendant’s phone and person, Angle did not physically restrain, touch, or take
defendant’s phone before he was arrested.
We reject defendant’s argument that the circumstances of this case are similar to
In re Matthew W. (2021) 66 Cal.App.5th 392, 409. In that case, while officers did advise
Matthew W. that he was not under arrest and the questioning took place at his home, the
court found he was entitled to Miranda warnings because Matthew was a juvenile, five
officers arrived at his home and entered his bedroom while he was asleep and it was still
dark, two uniformed and armed officers stood by as he was questioned, he was not
permitted to leave to obtain a blanket, and his mother was not permitted to be present
during the interview. (Id. at pp. 407–408.) In the instant case, defendant was 24 years
old when interviewed and none of these other circumstances were present.
Defendant relies upon Aguilera, supra, 51 Cal.App.4th 1151 and People v. Torres
(2018) 25 Cal.App.5th 162 to argue that a reasonable person would not have felt free to
leave defendant’s interview until the detective were satisfied with their answers. Both
cases are distinguishable from defendant’s case.
In Aguilera, the police went to Aguilera’s house and asked him and his mother if
Aguilera would talk to them at the station about a homicide. (Aguilera, supra,
51 Cal.App.4th at p. 1159.) However, once at the station, the circumstances in Aguilera
were very different. The police conducted an interrogation that was “intense, persistent,
aggressive, confrontational, accusatory, and, at times, threatening and intimidating.” (Id.
at p. 1165.) The court concluded that the officers conveyed to Aguilera the message that
he would be interrogated until he admitted his involvement in the crime. (Id. at p. 1163.)
That did not happen here. Nothing Detective Angle said or did up until Angle told
defendant he was being arrested gave the impression that defendant was not free to leave.

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 Defendant also relies upon People v. Torres to support his argument. In People v.
Torres, defendant Torres was contacted at his home and placed into a police car to be
interviewed. The detectives then told Torres that they would not leave and Torres could
not return home until he stopped lying and confessed. (People v. Torres, supra,
25 Cal.App.5th at p. 179.) However, in the instant case, Angle conducted the questioning
on defendant’s porch and told defendant that Angle would walk away if defendant lied,
leaving defendant free to walk back into his house.
“Any interview of one suspected of a crime by a police officer will have coercive
aspects to it, simply by virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be charged with a crime.
But police officers are not required to administer Miranda warnings to everyone whom
they question. Nor is the requirement of warnings to be imposed simply because the
questioning takes place in the station house, or because the questioned person is one
whom the police suspect.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
Defendant’s freedom was not so restrained that the interview was tantamount to an
arrest. Accordingly, the trial court did not err in concluding that the interview was not
custodial and Miranda warnings were not required.

C. Defendant’s Statement to Detective Angle Was Voluntary

1. Standard of review and applicable law.
“When a defendant challenges the admission of a statement on the grounds that it
was involuntarily made, the state bears the burden of showing by a preponderance of the
evidence that a defendant’s statement was, in fact, voluntary. [Citation.] On appeal, we
accept the trial court’s factual findings as to the circumstances surrounding the
confession, provided they are supported by substantial evidence, but we review de novo
the ultimate legal question of voluntariness.” (People v. Battle (2021) 11 Cal.5th 749,
790.) “The facts surrounding an admission or confession are undisputed to the extent the

17.
interview is tape-recorded, making the issue subject to our independent review.” (People
v. Linton (2013) 56 Cal.4th 1146, 1177 (Linton).)
We consider a statement involuntary—and thus subject to exclusion under the
Fifth and Fourteenth Amendments to the United States Constitution—if it is the product
of “coercive police conduct.” (People v. Williams (2010) 49 Cal.4th 405, 437.) We
evaluate the totality of the circumstances to determine “whether the defendant’s ‘ “will
has been overborne …” ’ by coercion.” (Id. at p. 436.) The presence of police coercion
is a necessary, but not always sufficient, element. (See ibid.)
We also consider other factors, such as the location of the interrogation, whether
the interrogation was repeated or prolonged, and the defendant’s maturity, intelligence,
education, physical condition, and mental health. (Schneckloth v. Bustamonte (1973)
412 U.S. 218, 226; People v. Dykes (2009) 46 Cal.4th 731, 752 (Dykes); Linton, supra,
56 Cal.4th at p. 1178.) We also consider whether the defendant was deprived of food or
sleep and whether the officers made threats, direct or implied promises, or used deceptive
practices. (Dykes, at p. 752.)
The Supreme Court has found a confession not “ ‘essentially free’ ” when a
suspect’s confinement was physically oppressive, invocations of his or her Miranda
rights were flagrantly ignored, or the suspect’s mental state was visibly compromised.
(People v. Spencer (2018) 5 Cal.5th 642, 672 (Spencer), quoting & citing People v. Neal
(2003) 31 Cal.4th 63 (Neal); see People v. McClary (1977) 20 Cal.3d 218, 229–230,
overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509–510 fn. 17;
People v. Hogan (1982) 31 Cal.3d 815, 839, 843, overruled on other grounds in People v.
Cooper (1991) 53 Cal.3d 771, 836.)

18.
 2. Analysis.
We are not persuaded the circumstances of defendant’s interview demonstrate his
statement was coerced. We have watched the lengthy video and are convinced that no
police coercion occurred, and Angle did not overbear defendant’s will.
As the Supreme Court did in Spencer, we begin by noting certain factual
predicates missing from defendant’s involuntariness claim. (Spencer, supra, 5 Cal.5th at
p. 672.) Defendant makes “ ‘no claim of physical intimidation or deprivation’ and ‘no
assertion of coercive tactics other than the contents of the interrogation itself.’ ” (Ibid,
quoting People v. Holloway (2004) 33 Cal.4th 96, 114.) In Spencer, the court contrasted
these facts with Neal, supra, 31 Cal.4th 63, “a case in which we held the confession
involuntary, in part, because the defendant ‘was placed [overnight] in a cell without a
toilet or a sink,’ ‘did not have access to counsel or to any other noncustodial personnel,’
‘was not taken to a bathroom or given any water until the next morning,’ and ‘was not
provided with any food until some time following the third interview, after more than
24 hours in custody and more than 36 hours since his last meal.’ ” (Spencer, at p. 672,
quoting Neal, at p. 84.)
The 16-minute interview in the instant case was not unduly long, and defendant
never asked for it to stop. No physical punishment occurred, and defendant was not
deprived of food or sleep. Detective Angle did not subject him to either repeated or
prolonged questioning. The nature of the questioning and the length of this interview do
not establish that defendant’s will was overborne. (See Dykes, supra, 46 Cal.4th at
p. 752.) Detective Angle was polite and did not threaten defendant in exchange for his
admissions. The questioning was not abusive. Nothing in the video indicates that
defendant felt coerced in the constitutional sense of the term at any time while he was
being questioned.
Like Spencer, “[w]e also find significant [Detective Angle]’s conduct, and
[defendant]’s response to it.” (Spencer, supra, 5 Cal.5th at p. 673.) As in Spencer, while

19.
Detective Angle expressed skepticism at some of defendant’s statements and eventually
told defendant that he had witnesses that contradicted defendant, he refrained from
“vituperative statements,” name-calling, any obvious strong-arm tactics, and “base
appeals to [defendant]’s deeply held beliefs.” (Ibid.) As in Spencer, defendant “gave
coherent, responsive answers and did not appear excessively fearful or distressed.”
(Ibid.) Similarly, defendant “also had the wherewithal to articulate—time and again—a
version of events that minimized his involvement,” before finally admitting to his actions.
(Ibid.)
Unlike Spencer, defendant did not receive Miranda warnings. However, we find
warnings were not necessary in this case because defendant was not in custody.
Additionally, defendant never invoked his right to counsel, and, unlike Neal, this was not
a case where defendant was advised of his rights, invoked them but, nonetheless, officers
disregarded the request. (See Neal, supra, 31 Cal.4th at p. 74.) As the Supreme Court
noted in Spencer, “[t]hese missing elements distinguish Spencer’s case from those where
we have found the confession to be involuntary.” (Spencer, supra, 5 Cal.5th at p. 673;
see id. at p. 672 [“suspect invoked both his right to remain silent and his right to
counsel—the latter ‘ “probably” “7 to 10 times” ’—only to be deliberately ignored so that
the detective could ‘obtain a statement’ ”], distinguishing Neal, at p. 74.)
Here, Detective Angle did not raise the possibility of a greater punishment if
defendant failed to confess nor promise leniency should he confess. Angle reminded
defendant that he was not in handcuffs but, when defendant responded, “I will be after,
right?” Angle replied, “I’ll be fully honest with you after, yeah, absolutely.” Angle said
that he was not going to handcuff defendant yet, promised that he had been lenient with
defendant, and asked whether defendant felt intimidated by Angle. The Supreme Court
has held that, “a constitutional violation will be found ‘only where the confession results
directly from the threat such punishment will be imposed if the suspect is uncooperative,

20.
coupled with a “promise [of] leniency in exchange for the suspect’s cooperation.” ’ ”
(Spencer, supra, 5 Cal.5th at p. 675.)
Defendant argues that several of Detective Angle’s statements demonstrate his use
of positive and negative incentives to induce a confession: (1) it was better to tell the
truth; (2) police could not proceed without having the truth; (3) Angle was willing to help
defendant and was the perfect person to whom defendant should confess; and (4) that
Angle had been lenient with defendant. We cannot conclude that any of these statements
were sufficient to coerce defendant to confess. Spencer rejected any conclusion that
certain interrogation techniques amounted to coercion. (See Spencer, supra, 5 Cal.5th at
p. 674.) Confronting a defendant with inconsistencies in his statement is “not an
improper interrogation technique, as an interrogation may include ‘ “exchanges of
information, summaries of evidence, outline of theories of events, confrontation with
contradictory facts, even debate between police and suspect.” ’ ” (Ibid.; see Linton,
supra, 56 Cal.4th at p. 1178 [officers can exhort a suspect to tell the truth and repeatedly
express that they believe a suspect is lying]; People v. Williams, supra, 49 Cal.4th at
p. 444 [officers can engage in vigorous and repetitive questioning of suspects meant to
ascertain a defendant’s involvement in crimes].) This is especially so where the officer’s
exhortations and persistent questions are relatively “low key” as they were in this case.
(Linton, at p. 1178.) The law is clear that “ ‘mere advice or exhortation by police that it
would be better for the accused to tell the truth’ ” does not render a subsequent
confession involuntary. (People v. Holloway, supra, 33 Cal.4th at p. 115; see People v.
Carrington (2009) 47 Cal.4th 145, 172 [“when law enforcement officers describe the
moral or psychological advantages to the accused of telling the truth, no implication of
leniency or favorable treatment at the hands of the authorities arises”]; People v. Orozco
(2019) 32 Cal.App.5th 802, 820 [“Law enforcement does not violate due process by
informing a suspect of the likely consequences of the suspected crimes or of pointing out
the benefits that are likely to flow from cooperating with an investigation.”].)

21.
 Additionally, Detective Angle’s overstated representation that he could recover
deleted photographs or that he had witnesses to the events does not warrant a finding of
involuntariness “ ‘[w]here the deception is not of a type reasonably likely to procure an
untrue statement.’ ” (Spencer, supra, 5 Cal.5th at p. 675 [finding no error in officer’s
false representation that the defendant’s fingerprints were found at scene]; see also
People v. Smith (2007) 40 Cal.4th 483, 506 [representation that fake “ ‘Neutron Proton
Negligence Intelligence Test,’ ” detected gun powder residue on the defendant’s hands
was not so coercive that it tended to produce a statement that was involuntary or
unreliable].)
Defendant was 24 years old when interrogated, and the record gives no reason to
suspect he suffered from any physical or mental disability, or that his mental acuity was
lacking. At no point during the interrogation did defendant appear physically or
emotionally distressed. (See, e.g., Spencer, supra, 5 Cal.5th at p. 673.) Defendant’s
“ ‘physical state’ and ‘personal characteristics’ do not strike us as sufficient bases to
disturb the trial court’s decision to admit his confession.” (Id. at p. 676 [rejecting claim
that the defendant’s cough diminished his mental faculties or made him especially
vulnerable to officer’s questioning], quoting Dykes, supra, 46 Cal.4th at p. 753 [rejecting
the defendant’s claim that “his decision to confess was based upon his youth and his
absence of experience with the criminal justice system” since “there was no indication of
police exploitation of these circumstances”].)
Based on the totality of the circumstances, the prosecution met its burden of
establishing by a preponderance of the evidence that defendant’s statement was
voluntary. We reject any assertion that Detective Angle brought influences upon
defendant that overcame his will to resist. Both defendant’s characteristics and the
details of this interview establish that his confession was free of coercion. Accordingly,
defendant’s interview was admissible at his trial, and the trial court did not err in denying
defendant’s motion to exclude or suppress his statement.

22.
II. Defendant has failed to show that defense counsel was ineffective in failing to
move to suppress the contents of his cellular phone.

A. Background
The clerk’s transcript provides no indication that defense counsel moved to
suppress evidence seized from defendant’s cellular phone. Defendant argues that the
search of defendant’s phone was conducted without a warrant and defense counsel was
ineffective for failing to move to suppress the digital evidence recovered in the search.
We conclude that the record is insufficient for us to evaluate this claim.

B. Standard of Review and Applicable Law
“In order to establish a claim for ineffective assistance of counsel, a defendant
must show that his or her counsel’s performance was deficient and that the defendant
suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016)
2 Cal.5th 181, 198 (Mickel), citing Strickland v. Washington (1984) 466 U.S. 668, 687–
692.) “To demonstrate deficient performance, [a] defendant bears the burden of showing
that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness …
under prevailing professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice, [a]
defendant bears the burden of showing a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different.”
(Mickel, at p. 198.)
“[C]ertain practical constraints make it more difficult to address ineffective
assistance claims on direct appeal rather than in the context of a habeas corpus
proceeding.” (Mickel, supra, 2 Cal.5th at p. 198.) “The record on appeal may not
explain why counsel chose to act as he or she did. Under those circumstances, a
reviewing court has no basis on which to determine whether counsel had a legitimate
reason for making a particular decision, or whether counsel’s actions or failure to take
certain actions were objectively unreasonable.” (Ibid.) “Moreover, we begin with the

23.
presumption that counsel’s actions fall within the broad range of reasonableness and
afford ‘great deference to counsel’s tactical decisions.’ ” (Ibid.)
“Accordingly, [our Supreme Court] ha[s] characterized defendant’s burden as
‘difficult to carry on direct appeal,’ as a reviewing court will reverse a conviction based
on ineffective assistance of counsel on direct appeal only if there is affirmative evidence
that counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.” (Mickel,
supra, 2 Cal.5th at p. 198.) If the record fails to disclose why trial counsel acted or failed
to act in the manner challenged, the ineffective assistance of counsel claim must be
rejected unless counsel was asked for and failed to provide an explanation, or there could
be no plausible explanation. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on
another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

C. Analysis
Defendant has not demonstrated that his attorney performed deficiently by not
moving to suppress the evidence from a warrantless search of his phone. Defendant
argues that his phone was searched illegally and without a warrant based upon a
declaration from a deputy clerk of the Stanislaus Superior Court. According to the
declaration, the deputy clerk searched defendant’s file (People v. Deichman (Super. Ct.
Stanislaus County, 2021, No. CR-18-002974)) and determined that it does not contain a
search warrant. However, the declaration fails to establish that the search warrant does
not exist as part of some other file in the records of the Stanislaus Superior Court and is
insufficient to establish that police did not obtain a search warrant for defendant’s phone.
Because defendant has failed to establish that police did not obtain a search warrant for
his phone, it is possible that defense counsel did not move to suppress the evidence
because the evidence was seized pursuant to a lawfully issued search warrant.
“A defendant who raises the issue on appeal must establish deficient performance
based upon the four corners of the record.” (People v. Cunningham (2001) 25 Cal.4th

24.
926, 1003.) “If the record on appeal fails to show why counsel acted or failed to act in
the instance asserted to be ineffective, … the claim must be rejected on appeal.” (People
v. Kraft (2000) 23 Cal.4th 978, 1068–1069.) The record here does not exclude the
possibility that a search warrant for defendant’s phone exists. Because (1) the record on
appeal sheds no light on why counsel acted or failed to act in the manner challenged,
(2) counsel was not asked for an explanation and failed to provide one, and (3) there
could be a satisfactory explanation for counsel’s approach, defendant’s claim on appeal
must be rejected. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; see People v.
Weaver (2001) 26 Cal.4th 876, 926 [“where counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find ineffective assistance
of counsel on appeal unless there could be no conceivable reason for counsel’s acts or
omissions”]; see also People v. Lucas (1995) 12 Cal.4th 415, 437 [there is a “ ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance’ ”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [generally, a reviewing
court “may not second-guess” trial counsel’s strategic and tactical choices].)
We conclude that defendant has failed to demonstrate that his trial counsel was
ineffective.

III. The trial court abused its discretion in admitting videos made by defendant of
a neighbor pursuant to Evidence Code section 1108, but the error is harmless.

A. Background
The trial court addressed the prosecutor’s request to admit uncharged sexual act
evidence prior to trial. After the trial court ruled that the testimony of Doe 2 and Doe 3
could be introduced pursuant to Evidence Code section 1108, the prosecutor indicated
that it would also move to admit nine photographs (eight of one victim and one picture of
defendant), four videos of the same victim depicted in the photographs, and one video of
a woman in a towel who was unaware she was being videoed. The prosecutor argued
that even though the woman in the fifth video was unidentified, defendant violated

25.
section 647, subdivision (j)(3)(a) when he videoed her in her bedroom unawares.
Because Doe 1 would testify that defendant photographed her with his penis in her mouth
and defendant photographed Doe 2 while she was sleeping, evidence of videoing the
neighbor would prove his propensity to commit the crimes.
The trial court noted defendant’s objection to the evidence but did not otherwise
rule on its admission. When the prosecutor moved the videos into evidence, defense
counsel advised the trial court that he had no objection to its admission. The prosecutor
later cross-examined defendant and displayed additional videos he created by setting up a
hidden camera to video inside his neighbor’s bedroom. The trial court, at defense
counsel’s request, instructed the jury with CALCRIM No. 1191A twice during testimony
and again before closing arguments. CALCRIM No 1191A instructed the jury that the
prosecution presented evidence of uncharged violations of sections 288, subdivision (a)
and 647, subdivision (j)(1), that the jury could only consider such evidence if it found the
prosecution proved defendant committed the offenses by a preponderance of evidence,
that the jury could conclude from the evidence that defendant was inclined to and likely
to commit the charged offenses, but that such a conclusion was only one factor to
consider along with all the other evidence and insufficient by itself to prove defendant
committed the charged offenses, and that the People still must prove the charged offenses
beyond a reasonable doubt.

B. Applicable Law and Standard of Review
In general, evidence of a defendant’s conduct other than what is currently charged
is not admissible to prove that the defendant has a criminal disposition or propensity.
(Evid. Code, § 1101, subd. (a).) Uncharged conduct evidence is admissible, however,
when relevant to prove a fact other than the defendant’s criminal disposition, such as
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393,

26.
superseded by statute on other grounds as stated in People v. Britt (2002)
104 Cal.App.4th 500, 505.) “But Evidence Code section 1108, subdivision (a) provides
an exception to this rule: ‘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.’ Evidence Code section 352,
in turn, provides that ‘[t]he court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.’ ‘In short, if evidence satisfies [Evidence
Code] section 1108, and is not excluded under [Evidence Code] section 352, admission
of that evidence to prove propensity is permitted.’ [Citation.] As a reviewing court, we
accord deference to a trial court’s determination that the probative value of a particular
piece of evidence outweighs any danger of prejudice.” (People v. Dworak (2021)
11 Cal.5th 881, 899, third bracketed insertion in original.)
Our Supreme Court has explained that Evidence Code section 1108 “provides the
trier of fact in a sex offense case the opportunity to learn of the defendant’s possible
disposition to commit sex crimes.” (People v. Falsetta (1999) 21 Cal.4th 903, 915.)
Various factors are included in “the trial court’s discretionary decision to admit
propensity evidence under [Evidence Code] sections 352 and 1108.” (Id. at p. 919.)
“Rather than admit or exclude every sex offense a defendant commits, trial judges must
consider such factors as its nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright admission, such

27.
as admitting some but not all of the defendant’s other sex offenses, or excluding
irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
We will not disturb a trial court’s exercise of discretion under Evidence Code
section 352 unless the court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice. (People v. Dworak,
supra, 11 Cal.5th at pp. 899–900, citing People v. Miles (2020) 9 Cal.5th 513, 587, 587–
588.)

C. Analysis

1. The trial court abused its discretion in admitting evidence of
defendant’s nonsexual offenses and instructing the jury to infer
propensity to commit the charged offenses.
Defendant argues that the trial court abused its discretion in admitting his attempts
to video his neighbor’s bedroom activities because section 647 is not a sexual offense for
purposes of Evidence Code section 1108. The People respond that defendant’s violation
of section 647 “was sexual in nature” and that the evidence was admissible as other
crimes evidence pursuant to Evidence Code section 1101, subdivision (b). We conclude
that because section 647 is not specifically enumerated in Evidence Code section 1108
and defendant’s conduct was not otherwise included in the definition of “sexual offense,”
the trial court abused its discretion in admitting the evidence pursuant to Evidence Code
section 1108 and erred in instructing the jury that it could conclude from such evidence
that defendant was disposed to and likely to commit the charged offenses.
Evidence Code section 1108 defines “sexual offense” as “a crime under the law of
a state or of the United States that involved any of the following: [¶] (A) Any conduct
proscribed by subdivision (b) or (c) of Section 236.1, Section 243.4, 261, 261.5, 262,
264.1, 266c, 269, 286, 287, 288, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of
Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of, or former

28.
Section 288a of, the Penal Code.” (Evid. Code, § 1108, subd. (d)(1)(A).)5 The trial court
admitted evidence of defendant’s surreptitious videoing of defendant’s female neighbor
as an uncharged sexual offense in violation of section 647, subdivision (j)(1), which
proscribes viewing the interior of a bedroom or bathroom with intent to invade the
privacy of a person or persons inside, and instructed the jury that this evidence could be
used by the jury to conclude that defendant was likely to commit the charged crimes as
one non-dispositive factor to consider in deciding defendant’s guilt (see CALCRIM
No. 1191A).
“Sexual offenses” made admissible by section 1108 are precisely defined by the
statute. Defendant’s uncharged conduct is not within the statutory definition and is thus
inadmissible character evidence under section 1101, subdivision (a). “If a defendant’s
‘uncharged conduct is not within the statutory definition [of “sexual offense”] …’ it
constitutes ‘inadmissible character evidence under [Evidence Code] section 1101,
subdivision (a).’ ” (People v. Jandres (2014) 226 Cal.App.4th 340, 353, second
bracketed insertion added, quoting People v. Nguyen (2010) 184 Cal.App.4th 1096, 1119
(Nguyen).) The People have failed to cite any authority for its position that any conduct
“sexual in nature” is admissible pursuant to Evidence Code section 1108, nor are we
aware of any case so holding. While the evidence may be admissible pursuant to
Evidence Code section 1101, subdivision (b) to prove something other than defendant’s
propensity to engaged in the charged offenses, the trial court’s instructions to the jury did
not so limit the evidence.

5 Evidence Code section 1108, subdivisions (d)(1)(B) though (F) describe other types of
conduct included within the definition of “sexual offense” that are not applicable here: “(B) Any
conduct proscribed by Section 220 of the Penal Code, except assault with intent to commit
mayhem. [¶] (C) Contact, without consent, between any part of the defendant's body or an
object and the genitals or anus of another person. [¶] (D) Contact, without consent, between the
genitals or anus of the defendant and any part of another person's body. [¶] (E) Deriving sexual
pleasure or gratification from the infliction of death, bodily injury, or physical pain on another
person. [¶] (F) An attempt or conspiracy to engage in conduct described in this paragraph.”

29.
 2. Harmless error.
However, we agree with the People that admission of the evidence that defendant
attempted to video his neighbor in a state of undress for his sexual pleasure and the trial
court’s instruction to the jury as to use of this evidence was harmless.
Absent a “miscarriage of justice,” we may not reverse the judgment. (Cal. Const.,
art. VI, § 13.) The court’s admission of the propensity evidence of defendant’s attempts
to video his neighbor did not prejudice defendant. The People’s case was very strong as
to each count. (See Nguyen, supra, 184 Cal.App.4th at p. 1120 [error in admitting
nonsexual offense uncharged conduct pursuant to Evidence Code section 1108 harmless
in light of the strength of evidence and court’s use of CALCRIM No. 1191 to instruct the
jury on the use of the evidence.].) Doe 1’s testimony as to counts 1 through 6 was
supported by Doe 2 and Doe 3 who both testified to defendant’s uncharged sexual
offenses committed on them. Defendant admitted in his testimony that he did cause
Doe 2 and Doe 3 to orally copulate him when they were eight and 10 years old and he
was 15 years old, thereby providing supporting testimony for their testimony as to
uncharged sexual offenses and support for Doe 1’s testimony as to the charged offenses.
In addition, defendant admitted to Angle, during his videoed interview, that he took two
photographs of Doe 1 while his penis was in her mouth. Defendant also admitted that he
took photographs of Doe 2 while she was sleeping because he was “still interested” in
her, which the jury could have inferred related to a sexual interest. Defendant’s
testimony supported Doe 2’s testimony that defendant caused her to orally copulate him
when she was 15 years old (charged in count 7). This evidence also supported Doe 1’s
testimony that defendant forced her to orally copulate him and photographed her while he
abused her.
As in Nguyen, the trial court here instructed the jury pursuant to CALCRIM
No. 1191A that evidence of the uncharged conduct was insufficient to prove defendant
guilty of the charged sexual offenses and that the People were still required to prove

30.
defendant guilty of aggravated sexual assault of a child, lewd acts on a child, using minor
for posing or modeling involving sexual conduct, and annoying/molesting a child
“ ‘beyond a reasonable doubt.’ ” (Nguyen, supra, 184 Cal.App.4th at p. 1120.)
Defendant argues that the prosecutor’s closing argument contributed to the
prejudicial impact of the erroneously admitted evidence because she argued that “the
Peeping Tom videos” were “nasty,” “creepy,” “unsettling,” and showed defendant was a
sexual deviant. However, defendant testified that he did cause Doe 2 and Doe 3 to put
his penis in their mouths when he was 15 years old. He also admitted that he
photographed Doe 2 for an hour while she was sleeping because he was still interested in
her. The prosecutor’s comments, therefore, were equally applicable to defendant’s
admissible conduct in photographing a sleeping 15-year-old girl in whom defendant was
sexually interested (and arguably more unsettling than photographing an adult) even if
the evidence of his videoing the neighbor should have been excluded.
Therefore, we conclude that it is not “reasonably probable” the jury would have
acquitted defendant even if the propensity evidence of defendant’s nonsexual conduct in
videoing his neighbor had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836
[applying Watson standard].)

IV. The trial court’s instruction that the jury could infer propensity to commit
the charged offenses by evidence of defendant’s uncharged nonsexual offenses
did not violate due process.
Defendant argues that his right to due process under the Fourteenth Amendment of
the United States Constitution was violated when the trial court instructed the jury that it
could infer his propensity to commit the charged sexual offenses from defendant’s
conduct in attempting to invade his neighbor’s reasonable expectation of privacy by
videoing her bedroom activities. Defendant argues that the permissive inference
contained in CALCRIM No. 1191A relieved the government of the burden of proving all
charged offense elements beyond a reasonable doubt. We disagree.

31.
 “The Due Process Clause of the Fourteenth Amendment ‘protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.’ In re Winship, 397 U.S. [358], at 364.
This ‘bedrock, “axiomatic and elementary” [constitutional] principle,’ id., at 363,
prohibits the State from using evidentiary presumptions in a jury charge that have the
effect of relieving the State of its burden of persuasion beyond a reasonable doubt of
every essential element of a crime.” (Francis v. Franklin (1985) 471 U.S. 307, 313.)
When a “trier of fact” is permitted “to determine the existence of an element of the
crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more
‘evidentiary’ or ‘basic’ facts,” “it affects the application of the ‘beyond a reasonable
doubt’ standard only if, under the facts of the case, there is no rational way the trier could
make the connection permitted by the inference.” (Ulster County Court v. Allen (1979)
442 U.S. 140, 156–157.)
Defendant argues that the inference permitted by CALCRIM No. 1191A in this
case, that a nonsexual offense could be used to infer defendant’s propensity to commit a
sexual offense, was irrational and violated due process. While we do not necessarily
agree that defendant’s conduct in videoing a neighbor for his sexual pleasure could not
support a rational inference that defendant would also record his sexual abuse of a minor
victim (as charged in count 6), we do not consider whether the inference was rational as
defendant’s argument fails because of the nature of the inference in this case. The
inference described in CALCRIM No. 1191A and provided for in Evidence Code
section 1108 does not permit the trier of fact to “determine the existence of an element of
the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more
‘evidentiary’ or ‘basic’ facts.” (Ulster County Court v. Allen, supra, 442 U.S. at p. 156.)
The instruction here allowed the jury to infer that defendant was disposed to commit the
charged offenses, but such predisposition is not an element of any of the charged
offenses. “Propensity was, of course, not an element of any of the charged crimes. And

32.
the instructions specified that the uncharged offense was not sufficient alone to prove the
charged offenses and reminded the jury the People still had the burden to prove each
charge beyond a reasonable doubt. Accordingly, ‘there is no reasonable likelihood the
instruction on uncharged offenses relieved the prosecution of its burden of proof with
respect to the charged offenses.’ ” (People v. Jandres, supra, 226 Cal.App.4th at p. 359.)
We conclude that any trial court error in instructing the jury with CALCRIM
No. 1191A regarding defendant’s nonsexual offenses did not violate due process because
it did not permit the jury to infer the existence of any offense element, it did not relieve
the prosecution of proving every element of every offense beyond a reasonable doubt,
and the admission of the evidence and the court’s instructions for its use was, as we
discussed ante, in part III.C.2., harmless.
DISPOSITION
The clerk of the superior court shall prepare an amended abstract of judgment
removing the $900 probation report fee at paragraph 12 of the indeterminate abstract of
judgment, filed on October 28, 2021, and forward it to the Department of Corrections and
Rehabilitation.
The judgment is otherwise affirmed.

HILL, P. J.
WE CONCUR:

DETJEN, J.

MEEHAN, J.

33.