Filed 8/1/14 P. v. Prather C A 2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

CHRISTOP HER TRAMAIN PRATHER , Defendant and Appellant. B 248669
(Los Angeles County Super. Ct. No. MA056374 )

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Murphy , Judge. Affirmed as modified

. George W

. Ta ylor , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Analee J. Brodie , Dep uty Attorneys General, for Plaintiff and Respondent.2

Defendant Christopher Tramain Prather appeals from a judgment of conviction entered on jury verdicts finding him guilty of first degree burglary and sexual battery. He claims: (1) his conviction of fi rst degree burglary was not supported by substantial evidence; (2) the trial court erred by admitting evidence of prior juvenile sexual offenses; and (3) the trial court erred by imposing a con current sentence for sexual battery

. We
direct the trial court to correct the abstract of judgment by staying the sentence for sexual battery, and we otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2012, defendant was charged by information with first degree burglary with a person present in viol ation of Penal Code section 459 (count 1 ) , and sexual battery in violation of Penal Code section 243.4 , subdivision (e)(1) (count 2 )

. 1 An amended information, filed September 11, 2012, alleged a third count, assault to commit a felony during the commissio n of a first degree burglar y, in violation of Penal Code
section 220 , subdivision (b). 2

1 Penal Code section 459 provides in relevant part: “ Every person who en ters any house, room, [or] apartment

. . . with intent to commit grand or petit larceny or any felony is guilty of burglary. As u sed in this chapter, ‘ inhabited ’ means currently being used for dwelling purposes, whether occupied or not. ” Penal Code section 243.4, subdivision (e)(1) provides in relevant part: “ Any person who touches an intimate part of another person, if the touchi ng is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by impriso nment in a county jail not exceeding six months, or by both that fine and imprisonment. ”

2 Penal Code section 220, subdivision (b) provides: “ (b) Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Secti on 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole. ”3

The case was tried to a jury in January and February 2013. The evidence at trial
was as follows.

A. The Burglary and Sexual Battery
Laura T

. (Laura) testified th at i n 2012, she lived in a two

- bedroom apartment on Kirkland Avenue in Lancaster, California, with her mother , Deborah T

. (Deborah)
, and
her two young children

. During the afternoon of February 10, 2012, she walked to a convenience store a few blocks from her apartment to get cigarettes for her mother

. Two men, one of whom was the defendant, followed her. She did not know either man. At some point, defendant ’ s companion asked Laura whether she lived in the Sienna Heights

a partments, and she said she did . As she walked back to her apartment, Laura realized
that defendant was a couple of feet behind her. She arrived at her apartment and knocked
on the door. Defendant asked if he could have a cigarette. Laura said, “ They ’ re not mine
, ” and walked into he r apartment. At about 2:00 a.m. the morning of February 11, 2012, Laura was awakened by someone opening the door to the bedroom where she and her infant son were sleeping

. Laura was wearing a pajama shirt and shorts. When she moved, the door shut and then opened again. She saw defendant standing halfway in the bedroom door. She was
scared. Something inside her

— “ a force of anger and scaredness ”

— told her to get defendant out of her house

. She screamed at defendant to get out and pushed him
towards th e front door. Defendant asked her for a cigarette
, and she said either that she did not have any or that they were not hers

. At the front door, Laura told defendant to get out and started to push him. As she did so, h e grabbed or cupped her left breast. He
touched her breast “ maybe three ” times before she finally was able to get him out of the apartment. As defendant left the apartment, Deborah came out of her bedroom. Laura called building security, which dispatched a security guard. Laura told th e security guard what had happened and he called 911

. Deputy sheriffs arrived and took Laura ’ s and Deborah ’ s
statements.4

Deborah testified that she was first aware of the incident when she heard a knock
on her bedroom wall. She walked out of her bedro om and saw Laura yelling at someone to get out of the house. Laura looked shocked and scared. It took Laura several minutes to be able to tell Deborah what happened, but she finally was able to say that the man
who had followed her home had been in the a partment

. Following the incident, Laura or Deborah notice d a pair of men ’ s sandals on the patio outside the apartment. Defendant ’ s DNA was found on the sandals. On May 29, 2012, a deputy sheriff showed Laura a six

- pack photo graphic lineup.
Laura id entified defendant as the man who entered her apartment. The deputy then arrested defendant, who was also a resident of the Sienna Heights Apartments. Deputy sheriffs interviewed defendant on May 30, 2012. 3 Defendant initially said
he did not leave hi s shoes on Laura ’ s patio or enter her apartment. He then said he entered her apartment through her open front door to ask her for a cigarette. When she said she did not have one, he left. Later in the interview , he admitted entering the apartment throug h the sliding glass door after removing his shoes. He said he had not been honest at the beginning of the interview because he was embarrassed. Defendant initially denied entering Laura ’ s bedroom or touching her. Later, he
said he “ probably accidental ly ” touched her breast; he ultimately admitted putting his
hand on her breast “ [ m ] aybe twice ” “ [j]ust for a second. ” Defendant said he recently had
introduced himself to Laura and “ thought she was a cool person ” with “ big titties. ” He

“ kinda wanted her t o like ” him. He had “ never seen her with a

— with a male
, or nothing. ” He grabbed her breasts because “ they was just there. ” Defendant said he had smoked marijuana the night of the incident and was high when he entered Laura ’ s apartment.

3 The jury heard the taped intervi ew and was given a transcript of the interview, which is part of the clerk’s transcript on appeal.5

B. Defendan t ’ s Prior Sexual Offenses
Luanna S

. , a clerk at the Antelope Valley High School in Lancaster, testified that defendant had been a student at the school. In November 2007, he entered her work area and asked for a pen. A few minutes later, she felt someon e breathing on her neck. She turned around to see defendant trying to adjust his clothing, with his erect penis exposed. When she saw him, defendant quickly covered his crotch with his hands and pulled his shirt down. She reported the incident to law en forcement and defendant was arrested in November 2007 for indecent exposure. Defendant told law enforcement his pants were falling down because his belt was loose and he was trying to pull them up.
Eri k a M

. , a probation officer, testified that she work ed at juvenile hall in Sylmar in 2008. In October 2008, she was summoned to defendant ’ s room, where she saw him standing on his bed
, exposing himself.

C. Jury Instructions Regarding Defendant’s Prior Offenses With regard to defendant’s prior offense s, the judge instructed the jury pursuant to
CACI No. 1191 as follows:

“ The People presented evidence that the defendant committed the crime s of P.C. 314 (Indecent Exposure), that were not charged in this case.

. . . [¶] You may consider
this evidence only if the People have proved by a preponderance of the evidence that the
defendant in fact co mmitted the uncharged offenses

. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not
that the fact is true.

“ If the People have not met this burden of proof, you must disregard this evidence entirely.

“ If you decide that the defendant committed the unchar ged offense s , you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit sexual batte ry as charged in count 2, and6

assault to commit a felon y during the commission of first degree burglary as charged in

c ount 3. If you conclude that the defendant committed the uncharged offenses , that conclusion is only one factor to consider along with a ll the other evidence. It is not sufficient by itself to prove that the defendant is guilty of sexual battery as charged in
count 2 and assault to commit a felon y during the commission of first degree burglary as charged in c ount 3 . T he People must still prove each charge beyond a reasonable doubt.

“ D o not consider this evidence for any other purpose except for the limited purpose of determining if the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to
commit and did commit counts 2 and 3. ”

D

. Verdict and Sentence On February 4, 2013, the jury found defendant guilty of counts 1 and 2 . The jury

was unable to reach a verdict as to count 3 . On May 10, 2013, the court sentenced defendant as follows: (1) as to count 1 , a base term of six years; (2) as to count 2 , six months in county jail, to be served concurrently with count 1 . The court also imposed a variety of fines and dismissed count 3 of the amended information

. Defendant timely appealed.

DISCUSSION

I. Defendant ’ s Burglary Conviction Was Supported b y Substantial Evidence
Defendant contends that his burglary conviction must be reversed because there
was no substantial evidence that he entered Laura’s resi dence with the specific intent to commit rape or another felony as the burglary statute requires. The crime of burglary consists of an unlawful entry “ accompanied by the ‘ intent to commit grand or petit larceny or any felony. ’ ” ( People v. Montoya (1994) 7 Cal.4th 1027, 1041, quoting Pen

. Code
, § 459.) A defendant commits first degree burglary if the dwelling is inhabited. ( I d.
, § 460.) “ One may b [ e ] liable for burglary upon entry with the requisite intent to7

commit a felony or a theft (whether felony o r misdemeanor), regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed. ” ( Montoya , supra , at p p

. 1041

- 1042.)
A d efendant ’ s intent to commit a felo ny at the time of entry is a necessary element of burglary . ( In re Leanna W. (2004) 120 Cal.App.4th 735, 74 1 , citing People v. Holt (1997) 15 Cal.4th 619, 699 ( Holt ) .) However, “‘“ [w] hile the existence of the specific intent charged at the time of enteri ng a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence. ” [Citation.] ’” ( Holt
, s upra , at p. 669.) W hether the entry was accompanied by the requisite intent is a question of fact for the jury. ( People v. Kwok (1998) 63 Cal.App.4th 1236, 1245 .) On appeal, we must affirm the conviction if “‘ after viewing the evidence in the light mo st favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ’ [Citations.] In making this assessment the court looks to the whole record, not just the evidence favorable to th e respondent to determine if the evidence supporting the verdict is substantial in light of other facts. [Citations.] ” ( Holt
, supra , 15 Cal.4th a t p. 667.)
Defendant contends that the evidence, including that of his conduct during and after his entry, d oes not support a reasonable inference that he intended to commit a felony when he entered Laura’s apartment. He notes that the only felony defined for the jury was rape, defined as sexual intercourse by force, violence, duress, menace, or fear of
immedia te and unlawful bodily injury , and he urges that nothing he did upon entering the residence could be considered an act of force, violence, duress, or menace
, or could create a fear of immediate and unlawful bodily injury. We do not agree. The evidence was that just hours after speaking briefly to a young woman who m defendant did not know, he entered her home, without her consent, in the middle of the night. Defendant did not knock on the front door or otherwise signal
to the inhabitants that he wished to enter ; instead , he removed his shoes ( from which the8

jury could infer that defendant wished to move through the apartment without being
heard ) and entered the apartment through a side door

. He then walked to Laura ’ s bedroom , where Laura was asleep and vulnerable, and opened the door. He exited the apartment only after Laura screamed and pushed him towards the front door , grabbing
Laura ’ s breasts several times as he did so. After his arrest, he admitted to police that he thought Laura was “ a cool perso n ” with “ big titties ” and that he had never seen her with a male companion.
From defendant ’ s stealthy entry in the middle of the night into the apartment of a woman with whom he was not acquainted, the jury could readily infer that defendant ’ s intent wa s illicit or illegal . Further, from defendant ’ s admission that he thought Laura had attractive breasts, his silent entry into her bedroom as she slept , and his repeated grabbing of her breasts as she pushed him from the apartment, the jury could reasonabl y have concluded that defendant entered the residence to commit rape or another felony
sexual offense. The present case is analogous to People v. Moody (1976) 59 Cal.App.3d 357 ( Moody ) , an appeal from a first degree burglary conviction. There, a 15

- yea r

- old girl was babysitting four children in their home. The babysitter and children fell asleep while watching television; at about 3 :00 a.m., the babysitter awakened and sent the children up to their bedrooms. After the children had gone to their bedroo ms, the babysitter heard a sound, turned, and saw defendant standing in the hall with his arms outstretched. The babysitter gasped or screamed, and defendant turned and fled. ( Id. at p. 360.) On appeal, defendant contended that the prosecution had faile d to prove each element of first degree burglary. The court disagreed and affirmed: “ Appellant entered the structure, to wit, a dwelling house, at night after all the doors had been locked and
when discovered he had his arms outstretched toward the inten ded victim, a 15

- year

- old girl who was dressed only in a nightgown. When discovered he ran. Thereupon when confronted by a police officer appellant once again took flight. From the above facts, the jury could have concluded and there was substantial evi dence to support a finding that9

appellant had either entered the house with an intent to commit theft or to commit rape. ” ( Moody
, supra , 59 Cal.App.3d at p. 363 .) People v. Padilla (1962) 210 Cal.App.2d 541 ( Padilla ) is also analogous

. In that

case , the victim awoke to find defendant sitting on her bed. She asked, “ ‘ Who is it? ’ ” and defendant answered, “ ‘ It ’ s me. ’ ” ( Id. at p. 542.) As she struggled to get free and began screaming, defendant ran from the house

. ( I bi d. ) Defendant was convicted of burg lary. On appeal, he contended there was no evidence that would warrant an inference of intent to rape. The Court of Appeal affirmed the conviction : “ There can be no doubt that appellant entered the house of [the victim] in the nighttime and without

cons ent. The evidence is clearly sufficient to warrant the conclusion that appellant entered the house for the purposes of raping [the victim]

. ” ( Id. at p. 544.)
As in both Moody and Padilla , defendant entered a stranger ’ s home in the middle of the night an d approached a young woman dressed in night clothes
, exiting only when
she began to scream and struggle. As in those cases, therefore, the jury reasonably could infer an intent to rape.

II. The Trial Court Did Not Abuse Its Discretion b y Admitting Evid ence of
Defendant ’ s Juvenile Sex Offenses Defendant contends that the trial court erred in admitting evidence of his prior juvenile sex offenses because they were not relevant to the present case. He concedes
that evidence of prior sexual offenses may b e admitted to show a propensity to commit
sexual offenses in some cases , but he urges that propensity evidence should be admitted only if the prior and charged offenses are sufficiently similar . In the present case, he urges, indecent exposure and attempt ed rape share no elements, and “ it cannot be said, without expert opinion, that the defendant ’ s commission of indecent exposure rationally supported an inference that he had a propensity o r predisposition to commit rape. ” For the reasons that follow, we d o not agree.10

A. Statutory Framework
Evidence Code s ection 1101 4 prohibits the admission of character evidence, including evidence of specific instances of conduct, to prove a defendant ’ s conduct on another occasion. (§ 1101, subd. (a); People v. Fals etta (1999) 21 Cal.4th 903, 913 ( Falsetta ) .) An exception to the rule exists when evidence of an uncharged offense is relevant to prove a fact, such as motive, intent, common plan, identity, or absence of mistake or accident, other than disposition to com mit the charged conduct. (§ 1101, subd. (b).) Section 1108, subdivision (a) provides an additional and broader exception to the general rule by allowing propensity evidence in sex offense cases. ( Falsetta
, supra , 21 Cal.4th at p. 907.) Section 1108, su bdivision (a) states : “ 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 p ursuant to Section 352. ” Section 352 provides: “ 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 substan tial danger of undue prejudice, of confusing the issues, or of misleading the jury. ”
The trial court ’ s ruling on the admissibility of prior bad acts evidence is reviewed
for abuse of discretion. ( People v. Carter (2005) 36 Cal.4th 1114, 1149.) Thus, it “‘ must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a mani fest miscarriage of justice. ’” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124. )

B. Defendant ’ s Juvenile Priors Were Probative of His Intent i n This Case
Defendant contends that for evidence of another crime to be admissible under section 1108, it must have some tendency in reason to show that the defendant is

4 All subsequent undesignated statutory references are to the Evidence Code.11

predisposed to enga ge in conduct of the type charged. He urges there exist no similarities
between indec ent exposure and attempted rape
, and thus that his commission of indecent

exposure was irrelevant to his propensity to commit rape. For the reasons that follow, we disag ree.

1. Section 1108 Expresses a Legislative Judgment That a n Individual

Who Has Committed an Enumerated Sex Offense Has a Propensity
to Commit Other Sex Offenses Although we agree with defendant that indecent exposure and rape are distinct crimes, we di sagree that defendant ’ s commission of indecent exposure was irrelevant to his propensity to commit rape. To the contrary, we believe that section 1108 expresses a legislative judgment that any enumerated sexual offense is relevant to a defendant ’ s
propens ity to commit another enumerated sexual offense, regardless of the degree of similarity between the two offenses. In interpreting section 1108, we begin with the statute ’ s plain language. As we have said, s ection 1108 , subdivision (a) permits, i n a cri minal action in which the
defendant is accused of “ a sexual off ense, ” introduction of evidence of “ the defendant ’ s commission of another sexual offense or offenses ” if the evidence is not inadmissible pursuant to s ection 352. (Italics added.) S ubdivision (d) defines “ sexual offense ” as a crime that involved “ [a] n y conduct proscribed by [Penal Code] Section 243.4 [sexual battery], 261 [rape], 261.5 [unlawful sexual intercourse with a minor], 262 [rape of a spouse], 264.1 [rape in concert with another ], 266 c [unlawful sexual intercourse, sexual penetration, oral copulation, or sodomy], 269 [aggravated sexual assault of a child], 286 [sodomy], 288 [lewd acts on a child under 14 years], 288a [oral copulation], 288.2 [distributing mat ter depicting minors engagi ng in sexual activity], 288.5 [continuous sexual abuse of a child], or 289 [forcible sexual penetration] , or subdivision (b), (c), or (d) of Section 311.2 [ distributing obscene mat ter ] or Section 311.3 [sexual exploitation of a child] , 311.4 [employing a m inor to distribute obscene matter] , 311.10 [advertising obscene matter depicting a minor] , 311.11 [possessing matter depicting minor engaging12

in sexual conduct] , 314 [indecent exposure] , or 647.6 [annoying or molesting a minor]
, ”

or “ [a] ny conduct proscrib ed by Section 220 of the Penal Code [assault with intent to commit rape, sodomy, or oral copulation], ” or “ [c]ontact, without consent, between any part of the defendant ’ s body or an object and the genitals or anus of another person, ” or

“ [c] ontact, without consent, between the genitals or anus of the defendant and any part of another person ’ s body
, ” or “ [d] eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person, ” or “ [a] n attempt or conspiracy to engage in conduct described in this paragraph. ” (Italics added.) By its plain language, therefore, the statute renders admiss ible in the trial of a sexual offense evidence of a defendant ’ s commission of “ another sexual offense ”

— i.e., a
crime involvi ng “ any of

” the enumerated crimes. (Italics added.) It would have been a simple matter for the Legislature to limit the evidence admissible under section 1108 to

“ another similar sexual offense or offenses ” had it so intended . B ecause section 1108
does not contain any such limiting language, we presume that the Legislature did not intend such a limitation. (E.g., Soto v. State of California (1997) 56 Cal. App. 4th 196, 202 [rejecting plaintiff ’ s contention that the immunity provided by Government Code

sec tion 8655 applied only in an emergency : “ If the Legislature had intended to so limit the scope of the section, we presume it would have said so. ” ].) The legislative history supports our conclusion. According to section 1108 ’ s author, “ ‘ At the hearing be fore the Judiciary Committee, there was discussion whether more exacting requirements of similarity between the charged offense and the
defendant ’ s other offenses should be imposed. The decision was against making such a change , because doing so would ten d to reintroduce the excessive requirements of specific similarity under prior law which [ A ssembly Bill No. ] 882 is designed to

overcome , . . . and could often prevent the admission and consideration of evidence of
other sexual offenses in circumstances wh ere it is rationally probative. Many sex
offenders are not “ specialists ,” and commit a variety of offenses which differ in specific
character. ’ ” (Historical and Statutory Notes , 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foll. § 1108 , p. 352, italics a dded .)13

I n Falsetta
, supra , 21 Cal.4th 903, a constitutional challenge to section 1108, the California Supreme Court concluded that admitting evidence of a defendant ’ s prior sexual offenses does not offend due process because, among other things, such offe nses

are highly relevant to defendant ’ s propensity to commit other sexual offenses. The court noted that in enacting section 1108, the Legislature had expanded the admissibility of disposition or propensity evidence in sex offense cases “ to assure that th e trier of fact
would be made aware of the defendant ’ s other sex offenses in evaluating the victim ’ s and
the defendant ’ s credibility. ” ( Id . at p. 911.) Such expansion was appropriate because of the relevance of prior offense evidence: “Although defenda nt disputes the point, the case law clearly shows that evidence that he committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these
offenses. As noted in [ People v. ] Alcala [(1984) 36 Ca l.3d 604], ‘ Such evidence “ is [deemed] objectionable, not because it has no appreciable probative value, but because it
has too much

. ” ’ ” ( Falsetta
, supra , at p. 915 .)
In People v. Loy (2011) 52 Cal.4th 46 ( Loy ) , the Califor nia Supreme Court expanded its holding in Falsetta to permit the introduction of evidence of prior sexual
offenses under section 1108 even where defendant contended that the prior and charged crimes were not similar and, therefore, the commission of the first was not probative of
defend ant ’ s propensity to commit the second. In Loy , defendant was convicted of the
1996 murder (while engaged in a lewd and lascivious act) of his 12

- year

- old niece. At trial, the prosecution presented evidence that in 1975 and again in 1981, defendant had
be en convicted of rape, oral copulation, and sodomy of two women, ages 16 and 32. ( Id

. at p p. 54

- 55.) Defendant contended the trial court erred in admitting this evidence because the prior crimes

— raping two women to whom he was not related

— were not similar to the charged crime, murder ing his 12

- year

- old niece.
The court disagreed, explaining that even if the crimes were not similar, that fact

“ is not dispositive. Before section 1108 was enacted, Evidence Code section 1101 governed the admission of prior criminal conduct, and a body of law developed concerning how similar the prior conduct had to be to the charged crime; the required14

degree of similarity varied depending on the use for which the evidence was offered. [Citation.] ‘ All of that radically c hanged with respect to sex crime prosecutions with the
advent of section 1108.

. . . [S]ection 1108 now “ permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose ” [citation], italics added), subject onl y to the prejudicial effect versus probative value weighing process required by [Evidence Code] section 352. ’ [Citation.] ‘ In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in s ex crimes prosecutions it is presumed admissible without regard to
the limitations of Evidence Code section 1101. ’ [Citation.] Or, as another court put it,

‘ [t]he charged and uncharged crimes need not be sufficiently similar that evidence of the
latter w ould be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108

. ’ ( People v. Frazier (2001) 89 Cal.App.4th 30, 4 0

- 41.) ” ( Loy , supra , 52 Cal.4th at p. 63 , italics added .) Thus, although defendant ’ s previous sexual offenses may not have been sufficiently similar to be admissible under section 1101, they nonetheless were admissible under se ction 1108. ( Ibid .; see al so People v. Story (2009) 45 Cal.4th 1282, 1293 [prior sexual offense evidence is “particularly probative” in sex cases]. )
Under the authorities discussed above , s ection 1108 plainly applies in the present

case. Defendant’s prior acts o f indecent exposur e (Pen

. Code, § 314) and the charged acts of sexual battery and assault with intent to commit sexual battery ( id.
, §§ 243.4,
subd. (e)(1), and 220, subd. (b)) are within the express language of the statute. They thus were presumptively probative. Moreove r, the prior and charged crimes had important
similarities , in that b oth the priors and the offense charged here involved defendant obtaining sexual gratification by forcing himself sexually on women without their

consent. Thus, a lthough the specific mann er in which defendant forced himself on his victims differed, in all three cases he apparently derived some sexual satisfaction from his
victims ’ unwilling participation. The trial court did not err in finding defendant ’ s prior
sexual offenses relevant an d probative.15 2. People v. Earle Does Not Compel a Different Result In urging that his juvenile priors were not relevant, defendant relies heavily on People v. Earle (2009) 172 Cal.App.4th 372 ( Earle ) . There, the d efendant was charged with two separat e crimes

— indecent exposure and assault to commit rape. Defendant moved for separate trials, arguing that a joint trial would be prejudicial. The trial court
denied the motion , and the defendant appealed. ( Id . at p p. 384

- 385.) On appeal, the court noted that a joint trial could not have prejudiced the defendant if evidence of the indecent exposure would have been admissible at the assault
trial. ( Earle
, supra , 172 Cal.App.4th at pp. 387

- 388.) It concluded that such evidence
would not have been admissib le, finding that in the absence of expert testimony, a jury could not rationally conclude that the commission of indecent exposure rationally supports an inference that a perpetrator has a propensity or predisposition to commit rape. ( Id . at p. 398.) The court said: “ [A] propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit

a different act

. The psychological manuals are full of paraphilias, from clothing fetishes
to sel f

- mutilation, some of which are criminal, some of which are not. No layperson can do more than guess at the extent, if any, to which a person predisposed to one kind of deviant sexual conduct may be predisposed to another kind of deviant sexual conduct,

c riminal or otherwise. Is one who commits an act of necrophilia (Health & Saf. Code, § 7052) more likely than a randomly selected person to commit an act of rape? Child
molestation? Indecent exposure? Is a pedophile more likely than a rapist or a member of the public to commit necrophilia? Without some evidence on the subject, a jury cannot answer these questions. ” ( Earle
, supra , at p. 399.)
To the extent Earle suggests or concludes categorically that indecent exposure is
irrelevant without expert te stimony to prove a different sexual offense, we disagree. The California Legislature, in enacting section 1108, made a legislative j udgment that sexual offenses of particular classes are suggestive of a defendant ’ s propensity to commit other
sexual offens es of those class es

. It therefore permits the introduction of prior sexual16

offenses without requiring expert testimony as a prerequisite

. 5 It is not our province to usurp the Legislature ’ s judgment in this regard

. (See, e.g., People v. Wheeler (1992) 4 Cal.4th 284, 300 , modified by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App

. 4th 1448, 1459

- 1460 [declining to find misdemeanor convictions admissible for impeachment purposes where statute permitted admission of only felony
convic tions: “ [T] he Legislature itself carefully weighed the distinction between felony and misdemeanor convictions when it decided to create a hearsay exception for felony convictions only.

. . . We declin e the People ’ s invi tation to usurp the Legislature ’ s

c onsidered judgment. ” ].) Further, requiring a battle of the experts to establish the relevance of different sexual offenses to one another in every case would abrogate the statute ’ s underlying policy to make prior sexual offenses more easily admissible i n subsequent sexual offense prosecutions. Section 1108 “ was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be
made aware of the defendant ’ s other sex offense s in evaluating the victim ’ s and the
defendant ’ s credibility. ” ( Falsetta
, supra , 21 Cal.4th at p. 911, italics added.) The

“ Legislature ’ s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility
determinations. Section 1108 prov ides the trier of fact in a sex offense case the opportunity to learn of the defendant ’ s possible disposition to commit sex crimes. ” ( Id

. at p. 915.)

5 Indeed, at least one court has held that although the prosecution may intro duce evidence of a defendant’s prior sexual offenses under section 1108, it may not offer expert testimony about a defendant’s disposition to engage in unlawful sexual conduct. ( People v. McFarland (2000) 78 Cal.App.4th 489, 493

- 497.)17

C. The Trial Court Did Not Abuse Its Discretion b y Concluding That the
Probative Value of Defendant ’ s P rior Sexual Offenses Was Not Outweighed b y Their Prejudicial Effect Of course, merely because prior sexual offenses are relevant does not mean they are admissible: Under section 1108, the trial court “ may no longer deem ‘ propensity ’ evidence unduly preju dicial per se, but must engage in a careful weighing process under
section 352. ” ( Falsetta
, supra , 21 Cal.4th at pp. 916

- 917.) “ In exercising this discretion as to a sexual offense, ‘ trial judges must consider such factors as its nature, relevance, and p ossible 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 as admitting some but not all of the
defendant ’ s other sex offenses, or excluding irrelevant though inflammatory d etails surrounding the offense. ’ ( People v. Falsetta
, supra , 21 Cal.4th at p. 917.) The court ’ s ruling under section 1108 is subject to review for abuse of discretion. ” ( Loy , supra , 52
Cal.4th at p. 61.) Our Supreme Court has recognized that evidence of previous criminal history inevitably has some prejudicial effect. Under section 1108, however, “ this circumstance
alone is no reason to exclude it. ‘ [S]ection 1108 affects the practical operation of [Evidence Code] section 352 balancing “‘ because adm ission and consideration of evidence of other sexual offenses to show character or disposition would be no longer treated as intrinsically prejudicial or impermissible. Hence, evidence offered under [section] 1108 could not be excluded on the basis of [se ction] 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 i s charged and other matters relevant to the determination of the charge. As with other forms of relevant evidence that are not subject to any exclusionary principle, the presumption will be in favor of admission

. ’”18

(Historical Note, 29B pt. 3, West ’ s Ann . Evid. Code [(1998 pocket supp.)] foll. § 1108,

p. 31.) ’ ( People v. Soto (1998) 64 Cal.App.4th 966, 984, italics added.) ” ( Loy , supra , 52
Cal.4th at p. 62.) In the present case, a key issue for the jury was defendant ’ s specific intent

— i.e.,
whether def

endant intended to commit a felony when he entered Laura’s apartment. ( In
re Leanna W. (2004) 120 Cal.App.4th 735, 74 1 , citing Holt
, supra , 15 Cal.4th at p. 699.) As we have said, d efendant ’ s juvenile priors were circumstantial evidence of his dispositio n or propensity to commit sexual offenses. ( Falsetta
, supra , 21 Cal.4th at

p. 920.) As such, they were probative of his intent in this case

. Defendant contends that even if his juvenile priors were probative, their probative value was substantially ou tweighed by their prejudicial effect because they likely

“ inflame [d] the jury ” and “ bolster [ ed ] a very weak case ” against him

. We do not agree. As an initial matter, the facts of the prior offenses were not particularly inflammatory. Both priors involve d defendant exposing himself, during the day, while in a public place
, and without touching his victims . While these events were no doubt unpleasant for the women who experienced them, they presumably were less frightening than defendant’s
conduct in the present case, where he entered a woman’s bedroom in the middle of the night, where she was alone with her very young child , and then repeatedly fondled her
breasts

. Further, the priors did not introduce a sexual motive where one was not otherwise
obvious to the jury. Under the facts of the case

— a stealthy, middle

- of

- the

- night entry into the bedroom of a sleeping young woma n

— the jury reasonabl y would have inferred that defendant intended to rape the victim. Indeed, rather than prejudicing defendant, the priors actually could have bolstered his defense by suggesting an alternative,
nonfelonious 6 reason why defendant was in Laura’s bedroom: to expose himself to her, not to rape her.

6 Penal Code sectio n 314, subdivision (1) “treats as a misdemeanor an act of ‘willfully and lewdly’ exposing the ‘person, or the private parts thereof, in any public19

III. The Sentence f

or Count 2 Should Be Stayed Pursuant to Penal Code
Se ction 654 Defendant contends, and the Attorney General concedes, that his sentence on

count 2 (sexual battery) should have been stayed under Penal Code section 654. We

agree. “Section 654 .

. . bars multiple punishment when a defendant is convicted of t wo or more offenses that are incident to one objective. ( Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal ].) ‘Whether a course of criminal conduct is divisible and therefore gives rise to more tha n 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. ’ ( Neal
, supra , 55 C al.2d at p. 19, italics added.)” ( People v. Casica (2014) 223 Cal.App.4th 320, 323.) Because defendant’s “intent and objective” in committing both the burglary and the sexual battery appear to
have been the same

— committing a sexual assault

— the sexual bat tery should not have been separately punished. Defendant’s sentence for sexual battery therefore should be stayed.

place, or in any place where there are present other persons to be offended or annoyed thereby.’” ( People v. Eckard (2011) 195 Cal.App.4th 1241, 1244

- 1245.)20 DISPOSITION

The trial court is directed to correct the abstract of judgment by ordering the

sentence as to c ount 2 stayed pursuant to Pe nal Code section 654, and the clerk is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON , J. *

We c oncur:

WILLHITE, Acting P. J.

MANELLA, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.