Filed 5/15/13 P. v. Jessee CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. MARK JESSEE, Defendant and Appellant. D061402

(Super. Ct. No. SCD225723)

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kimberley Donohue, A. Natasha Cortina, Deputy Attorneys General for Plaintiff and Respondent.2 A jury convicted Mark Jesse e of three counts of a lewd act on a child (Pen. Code, § 288, subd. (a); counts 1, 2 and 3) and aggravated sexual assault (Pen. Code, §§ 269/286; count 4). The tria l court sentenced him to an in determinate term of 15 years to life on count 4, plus a consecutive determ inate 10-year state prison term on counts 1 through 3 (a midterm of 6 years for count 1 and consecu tive two-year terms for counts 2 and 3). On appeal, Jessee contends the tria l court prejudicially e rred by admitting certain
evidence under Evidence Code 1 sections 1108 and 1101. We affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND Jessee does not challenge the sufficiency of the evidence of his convictions, so we set out the offenses in a summa ry fashion for purposes of ev aluating his evidentiary error claims about prior charged an d uncharged misconduct. ( People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090 ( Miramontes ).) In 2004, Jessee's younger brother, Angelo L., permitted Jessee to live with him and Angelo's then 10-year-old daughter A. in a two-bedroom home while Angelo's wife G., a service member, was depl oyed. A. and Angelo shared one room while Jessee slept in the other. During the ne xt few months, while Jessee wa s babysitting A. and they were alone, Jessee touched her inappropriately, taki ng her shirt off and touching her breasts. He also hit and sodomized A. on one occas ion, removing her clothes and putting her face down on his bed to do so, when he becam e upset after she discovered pornographic

1 All statutory references are to the Ev idence Code unless otherwise stated.3 videos in his room. A. asked him to stop but he did not. Afterwards, Jessee told A. she could not tell anyone he had to uched her in that way. In 2009, Angelo began counseling, which revealed that when he was six years old and Jessee was about 11 years old, Jessee had ma de Angelo orally copulate him. Angelo reported the sexual abuse by Jessee to G., w ho had since moved to Maryland after her return from deployment, and G. questioned A. , who denied any abus e by Jessee. About a month later, however, in late May or early June of 2009, A. finally told her mother about Jessee's actions. G. inform ed police in Maryland. Before trial, the court granted the People 's in limine motions to introduce evidence of Jessee's sexual acts against Angelo, as we ll as the testimony of Deborah F., who met Jessee while walking home from school and ha d a sexual relationship with him when she was 13 years old. The court permitted introd uction of the evidence concerning Angelo, reasoning the oral copulation acts betw een Angelo and Jessee were not more inflammatory than the offens es against A.; the acts were committed against relatives; while the conduct was not as si milar as the incident with A ., it did not need to be under section 1108; and the conduct was not so pr ejudicial that it should be removed from the jury's consideration. The court also reas oned that Jessee subseq uently had not led a blameless life, thus lessening any concern about remoteness. As to Jessee's offenses with F., the court allowed the testimony under sect ion 1108 as well as 1101, subdivision (b) regarding Jessee's intent, possibly lack of mistake or accident, and knowledge. Accordingly, at trial, F. testified that when Jessee was 23 years old and she was 13 years old, Jessee led F. to believe they were starting a boyfriend-gi rlfriend relationship;4 Jessee would walk her to and from school, and bring her flowers and gifts, but it quickly turned into kissing and th en a sexual relationship. While F. was 13 years old and over the next two years, Jessee fondled F.'s breasts, engaged in sexual intercourse with F., and sodomized her with his fingers. F. testified there was force involved in their sex acts in that she did not feel she had a choice. Sh e also testified Jessee physically hurt her, once throwing her across a room. Jess ee instructed F. to keep thei r relationship a secret so she did not tell her parents, but he r parents ultimately learned of it and the relationship ended. After Jessee's acts with F. were reported to police, Jessee pleaded guilty, served five months in jail, and was put on three years of probation. The People also introduced Jessee's in terview with San Diego Police Detective Stacee Botsford, during which Je ssee admitted the sexual c onduct with Angelo and F., but denied any wrongdoing with A. As for Angelo, Jessee claimed they were just kids "fooling around with each other sexually" an d that it was a "mutual thing." In that interview, Jessee said that when Angelo was older, he ha d wanted to continue that relationship but that Jessee made it clear it was not going to happ en. Jessee told the detective that Angelo perceived the situati on as molestation, was "in a rage" about the past, had accused Jessee of ruining his life, and had "flooded" his and his girlfriend's phones with text messages. Jessee said Angelo told him he would not stop until he "ruin[ed] [Jessee's] life," and he anticipated that Angelo or on e of his friends would try to hurt him because of it. Defense Evidence5 Jessee, who was 44 years old at the time of trial, testified in his defense. He admitted to being a "very se lf-centered drug addict an d alcoholic" before becoming involved in the church, which caused him to change his behavior. He acknowledged his relationship with F., but denied having any interest in prepubescen t girls then or at present. Jessee denied sexually or physica lly assaulting F., but conceded he hurt her because she was not emotionally ready for that "kind of relationship." Jessee admitted that when he was 11 and 12 years old, after swimming or going to the beach and then showering, he and Angelo wo uld touch each other's ge nitals and orally copulate each other. He did not reca ll forcing Angelo, but stated it was his idea and he admitted responsibility for the situation. Jessee testified he did not rape A., sodomize her, touch her breasts in a sexual or any way, or view her in a sexual way. He denied assaulting or punching her.
I. Admission of Charged and Unc harged Misconduct to Prove Propensity under Section
1108 Jessee contends the trial court prejudi cially erred by admitting evidence of the sexual abuse of his brother Angelo, as well as his prior sexual contact with F. Pointing out his counsel had conceded th e evidence fell with in the scope of section 1108, Jessee maintains the evidence was mo re prejudicial than probative, and should have been excluded under section 352.
A. Legal Principles Generally, evidence of a defe ndant's character is not admissible to prove his conduct on a specific occasion conformed to his character. (§ 1 101, subd. (a).) An6 exception to this rule is set forth in sec tion 1108, subdivision (a), which states: "In a criminal action in which the defendant is ac cused of a sexual offense, evidence of the defendant's commission of another sexual offens e or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursu ant to Section 352." (§ 1108, subd. (a).) Under section 352, the tria l court may "exclude evidence if its probative value is substantially outweighed by the probability that its admissi on will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudic e, of confusing the issues, or of misleading the jury." (§ 352 .) "The weighing proce ss under Evidence Code section 352 'depends upon the tr ial court's consideration of th e unique facts and issues of each case, rather than upon the mechanical applicati on of automatic rules.' " ( Miramontes , supra , 189 Cal.App.4th at p. 1097.) Wh en considering whether to exclude evidence of another sexual offense under sec tion 352, "trial judges must consider such factors as its nature, relevance, and possibl e remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its simila rity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending agai nst the uncharged offense, and the availability of less prejudic ial alternatives to its outright admission, such as admitting some but not all of the defendant's other se x offenses, or excluding irrelevant though inflammatory details surro unding the offense." ( People v. Falsetta (1999) 21 Cal.4th 903, 917.) "[T]he probative value of 'other crimes' evidence is in creased by the relative similarity between the charged and uncharged o ffenses, the close proximity in time of the7 offenses, and the independent sources of evidence (the victims) in each offense . . . ." ( Id

. at p. 917.) Further, "the prejudicial impact of the evidence is re duced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defe ndant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to ma ke a separate determination whether defendant committed the other offenses." ( Ibid. ) In evaluating whether to admit evidence of other sexual offenses, the court should consider " 'whether "[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning th e charged offenses." ' " ( Miramontes , 189 Cal.App.4th at p. 1097.) On appeal, a trial court's ruling under section 1108 is subject to review for abuse of discretion. ( People v. Loy (2011) 52 Cal.4th 46, 61; People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104; Miramontes , supra , 189 Cal.App.4th at p. 1098.) We will not find an abuse of discretion in admitting ev idence under section 1108 unless the court's ruling " ' "falls outside the b ounds of reason" ' " and the c ourt has exercised its discretion in an arbitrary, capricious or patently absurd manner that has resulted in a miscarriage of justice. ( Miramontes , supra , 189 Cal.App.4th at p. 1098; People v. Lewis (2009) 46 Cal.4th 1255, 1286.)

B. Prior Uncharged Sexual Acts with Angelo Jessee maintains the evidence of his sexual misconduct with Angelo was insufficiently probative or unduly prejudicial under section 352. Relying on factors8 discussed in People v. Harris (1998) 60 Cal.App.4th 727, he argues that the prior uncharged acts were at least as inflammatory as those against A. He argues that evidence of his uncharged acts had a high risk of causi ng the jury to punish him for them in the present case; that the prior misconduct, which occurred over 25 year s previously in 1979, was remote; the prior misconduct was too dissim ilar to the acts against A. to have any probative value; and the evidence had no tend ency to show Jessee had a propensity for committing the type of sex crime charged in the present case absent expert testimony, which was not offered. Regarding the similarity of the acts, the court in People v. Loy , supra , 52 Cal.4th 46 explained: " 'In enacting . . . section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without rega rd to the limitations of . . . section 1101.' [Citation.] . . . '[T]he charged and uncharged crimes need not be sufficiently simi lar that evidence of the latter would be admissible under . . . se ction 1101, otherwise . . . section 1108 would serve no purpose. It is enou gh the charged and uncharged offenses are sex offenses as defined in section 1108.' " ( Loy , at p. 63, quoting People v. Frazier (2001) 89 Cal.App.4th 30, 40-41; see also Miramontes , supra , 189 Cal.App.4th at p. 1099.) The similarity of the acts, however, are relevant to the trial court's exercise of discretion. ( Loy , at p. 63.) Here, while Jessee's acts against Angelo may not have been su fficiently similar to his acts against A. to be admissible under section 1101, there are nevertheless some similarities. The acts were committed against relatives: his brother and niece, and Jessee9 took advantage of the victims at convenient times while they were isolated from others; Angelo in a bedroom and A. when he was babysitting her and no one was home. Both victims were young, prepubescent children at the time. Though we acknowledge some significant differences in the circumstances and acts against Angelo and A., we cannot say admission of Jessee's acts against Angelo is arbitrary, patently absurd, or otherwise a manifest abuse of the tr ial court's discretion. Nor did the trial court err by concluding the acts against then six-year-old Angelo, alleged forced oral copulation, 2 were no more inflammatory than the forcib le sodomy on A., who was 10 years old at the time the offens es took place. We disagree the facts of Jessee's actions against Angelo were so infla mmatory or prejudicial as to preclude their admission in this case on the issue of his prope nsity to commit such acts. None of the prior acts involved extreme violence or seve re injuries as did the defendant's prior conduct in People v. Harris , supra , 60 Cal.App.4th 727, on which Jessee relies. Further, the People spent minimal tim e addressing Jessee's prior act against Angelo; it was introduced by two short questions to Angelo without any inflammatory details beyond the act 3 and via Jessee's admissions ov er the course of approximately

2 The People maintain th at the evidence did not s how Jessee used force to accomplish the oral copulation against Angelo, contrasting those acts with the forcible sodomy of A. Whether or not the acts ag ainst Angelo were fo rced, we nevertheless would not find them to be more inflammatory than Jessee's act of removing A.'s clothing, forcing her face down on the bed, and sodomizing her while she pleaded for him to stop.
3 "[Prosecutor:] Sir, when you were a si x-year-old boy, did the defendant ever commit any sexual acts on you? [¶] [Angelo:] Ye s. [Prosecutor:] Wh at were they, sir? [Angelo:] He made me perform oral on him."10 three and a half pages of a 25-pa ge transcription of his interv iew with Detective Botsford. Jessee's counsel then expanded on the incident in cross-examination of both Angelo and his redirect examination of Jessee's pastor, as king Angelo if he discovered the abuse by Jessee through counseling and asking Jessee's pastor if he believed Jessee was giving honest answers when he admitted to thos e acts during his police interview. As for the passage of time since the acts, there are no specific time limits establishing when a prior offense is so remote as to be inadmissible ( People v. Pierce (2002) 104 Cal.App.4th 893, 9 00), and appellate courts ha ve upheld the admission of prior offenses committed 20 to 30 years before the offenses at issue. ( People v. Spector (2011) 194 Cal.App.4th 1335, 1388-1389 [prior gun assaults, including 28-year-old assault, properly admitted, particularly where similar assaults had recurred over a lengthy period of time]; People v. Branch (2001) 91 Cal.App.4th 274 , 284 [30-year-old sex offense properly admitted]; People v. Pierce , at p. 900 [23-year-old rape conviction]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 99 1-992 [21- to 30-year old crimes]; People v. Waples (2000) 79 Cal.App.4th 13 89, 1393, 1395 [18- to 30-year-old offenses properly admitted].) That Jessee committed ot her sex offenses against F. approximately 11 years later when he was 23 y ears old, adds probative value to the uncharged offenses against Angelo. ( Spector , at p. 1389.) We agree there was a risk the jury woul d be tempted to convict Jessee of the current charges to assure he was punished for the prior uncharged offense. (See People v. Branch , supra , 91 Cal.App.4th at p. 284; People v. Frazier , supra , 89 Cal.App.4th at11 p. 42.) But the trial court gave the jury in structions that focuse d its attention on the current charges and advised it about the lim ited way in which it could consider the evidence of the uncharged assault on Angelo in relation to those charges. 4 We conclude those instructions "counterb alanced" that risk. ( Frazier , at p. 42; see also Miramontes , supra , 189 Cal.App.4th at p. 11 03 [instructing jury on limited purpose of evidence of prior uncharged sex crimes reduced possibility of jury confusion].) This court has explained that " ' "[t]he 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evok e an emotional bias against defendant as an individual a nd which has very little effect on the issues. In applying section 352, 'prejudicial' is not sy nonymous with 'damaging.' " ' " ( Miramontes , supra , 189 Cal.App.4th at p. 1098; People v. Dejourney , supra , 192 Cal.App.4th at p. 1105; see also People v. Karis (1988) 46 Cal.3d 612, 638.) "T he code speaks in terms of undue prejudice" and thus evidence should be excluded as unduly prejudicial " 'when it is of such nature as to inflame the emotions of the jury, motivati ng them to use the information, not to logically ev aluate the point upon which it is relevant, but to reward or

4 The court instructed the jury with CALCRIM No. 1191, whic h told the jury: (1) it could consider the evidence of uncharged sex offenses only if the People proved by a preponderance of the evidence th at Jessee committed them; (2) if the People did not meet that burden, it was to disregard the evidence entirely; (3) if the jury decided Jessee committed the uncharged sex offe nses, it could consider that evidence to help it decide whether he committed aggravated sexual assault of a child an d lewd acts upon a child as charged in the current case; a nd (4) evidence of other unchar ged sexual offenses was one factor to be weighed "together with all the other evidence" and was not sufficient by itself to prove his guilt of the current charges. The jury wa s told to consider the instructions as a whole, and was instructed in detail on the reasonable doubt standard. (Accord, People v. Loy , supra , 52 Cal.4th at p. 75.) We presume the jury understood and followed the court's instructions. ( People v. Lindberg (2008) 45 Cal.4th 1, 26.)12 punish one side because of the jurors' emotional reaction.' " ( People v. Branch , supra , 91 Cal.App.4th at p. 286.) Here, we cannot say Jessee sufficiently de monstrated that the evidence of the uncharged acts against Angelo would unduly prejudice him with th e jury, or that the prejudice resulting would substantially outwei gh the probative value of the evidence for purposes of section 1108. Th e acts are "extremely releva nt" to his charged offenses ( People v

. Van Winkle (1999) 75 Cal.App.4th 133, 141), particularly where Jessee tried to paint A. as mistaken or a liar. ( People v. Waples , supra , 79 Cal.App.4th 1395 [propensity evidence highly relevant to dispute an attempt to paint current victims of sex offenses as liars or mistaken in their cl aims of molestation].) Under the relevant standards, and viewing the evidence in the light most favorable to th e trial court's ruling (see People v.
Carter (2005) 36 Cal.4th 1114, 11 48), we cannot conclude the court's decision to admit Angelo's testimony as to defendant's prior ac ts was arbitrary, capricious, manifestly absurd, or exceed ed the bounds of reason. ( People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Thus, we perceive no miscarriage of ju stice in the admission of the prior act evidence as to Angelo under section 1108 to prove Jess ee's propensity to commit the charged offenses. ( People v. Dejourney , supra , 192 Cal.App.4th at p. 1105.) Even if we were to reach a different conclusion that an abuse of discretion occurred, it would be harmless error. Jessee maintain s A.'s credibility wa s weak in view of the fact she had waited four years to report the misconduct; neith er her father or mother noticed any signs of abuse; A. initially denied any abuse and only reported it to a vice principal after13 getting into a fight at school; that in Jesse e's prior trial on the ch arges, the jury was unable to reach a verdict resulting in a mist rial; and that the trial presented a close credibility call as reflected by the jury's reque st for a readback of A.'s testimony. He claims his credibility was stronger, and "bol ster[ed]" by evidence of his religious transformation as well as the "requirement of honesty that is a prominent component of his faith." The record shows that the jury not only asked for a readback of A.'s testimony but also the recording of Jessee's interview w ith Detective Botsford. Contrary to Jessee's argument, we perceive from the jury's readback that it carefu lly reviewed th e evidence to determine whether it presented a serious qu estion concerning A.'s credibility and any reasonable doubt as to Jessee's guilt. Furt her, Jessee admitted that at the time of the offenses against A., he was still an alcoholic and smoked marijuana, often drinking four or five times a week and sometimes more, a nd drank to the point of intoxication. He admitted he maintained an addiction to po rnography, some of wh ich involved women dressed as young girls. He also admitted his inhibitions we re lowered when he drank. The jury plainly determined A. to be cred ible and Jessee was not, and having reviewed A.'s testimony, the testimony of her father and mother, and the testimony of Detective Botsford, we conclude it is not reasonably probable an outc ome more favorable to Jessee would have resulted absent any presumed error. ( People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Prior Offenses Against F. We likewise perceive no abuse of discretion in the court's admission of the evidence pertaining to Jessee's mo lestation of F. The jury learned that Jessee had pleaded14 guilty in Oregon to a cr ime for his conduct with F., had served five months in jail, was on probation for three years, and had been required to register as a sex offender, though he failed to meet that requirement for several years. (Accord, People v. Loy , supra , 52 Cal.4th at p. 61 [defendant's conviction of prior assaults, wh ich had been established and was certain, "strongly, support[ed] their admiss ion" under sections 11 08 and 352].) As in Loy , Jessee thus "bore no new burden of defending against the charges," and "[t]he jury would not be tempted to convict him of the charged crime to punish him for the earlier crime." ( Loy , at p. 61; see also People v. Lewis , supra , 46 Cal.4th at p. 1287.) "Additionally, the conviction[] meant there wa s little danger of confusing the issues or requiring an inefficient minitrial to determin e defendant's guilt of th e previous crimes." ( Loy , at p. 61.) Further, the evidence regardin g Jessee's offenses against F. bore some si milarity to the present offenses against A., in that both offenses involved young girls, F. at age 13, and A. at age 10; both involved the fondling of their breasts, sodomy, the use of force or, at the very least, compulsion; an d as to both, Jessee told the gi rls to keep the acts secret. As the People point out, F.'s testimony was brie f; it took less than a half an hour of about a day and a half of trial testimony, and spanned only about 14 pages of the trial transcript. Under all of the circumstances, we cannot say the prejudicial factors outweighed the probative value of this eviden ce, and conclude the trial cour t did not act arbitrarily or irrationally in admitting it.
II. Admission of Evidence of Jessee's Rela tionship with F. Under Section 110115 Jessee further contends the trial court pr ejudicially erred by admitting the evidence as to F. under section 1101, subdivision (b). 5 Specifically, he ma intains the evidence as to F.—which, as he characteri zes it, established a "consensua l" relationship with a "postpubescent teenager"—was not su fficiently similar to the charged offenses to permit an inference of intent, and thus cannot support a rational inference he harbored the same intent in each situation. Je ssee also points out his defens e was not that he lacked the requisite lewd intent, but that he did not touch A. at all; that the incidents never occurred. Thus, he argues, the evidence lacked any pr obative value on any issue in the case. Finally, Jessee argues any possible slight prob ative value was outweighed by the risk of prejudice. Because we have concluded the trial court did not err in finding the evidence as to F. relevant and admissible under section 1108, we need not discuss its admissibility under section 1101. ( People v. Soto , supra , 64 Cal.App.4th at pp. 98 3-984, 992; see, e.g., People v. Lewis , supra , 46 Cal.4th at p. 1288 [defendant's failure to establish an abuse of

5 Under section 1101, subdivision (b), " '[e]vidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficien tly similar to support a ra tional inference of identity, common design or plan, or intent.' " ( People v. Carter , supra , 36 Cal.4th at p. 1147; see also People v. Walker (2006) 139 Cal.App.4th 782, 795- 796.) "[T]hat a defendant previously committed a similar cr ime can be circumstantial ev idence tending to prove his identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materi ality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion." ( People v. Roldan (2005) 35 Cal.4th 64 6, 705, disapproved on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) "When a defendant pleads not guilty, he or she pla ces all issues in dispute, and thus the perpetrator's identity, intent and mo tive are all material facts." ( People v. Walker , at p. 796, citing Roldan , at pp. 705-706.)16 discretion in admitting evidence prior assault under section 1101 rendered irrelevant the question of whether all of that evid ence was admissible under section 1108].) Nevertheless, our analysis as to the simila rities between the acts against F. and those against A. is sufficient to es tablish the propriety of thei r admission under section 1101, subdivision (b), particularly as to common plan and scheme. " 'To establish the existence of a common design or plan, the common featur es must indicate the existence of a plan rather than a series of simila r spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [Citation.] '[A] co mmon scheme or plan focuses on the manner in which the prior misconduct and the current cr imes were committed, i.e., whether the defendant committed similar distinctive acts of misconduct against similar victims under similar circumstances.' " ( People v. Walker , supra , 139 Cal.App.4th at p. 803.) It is of no moment that the court dec lined to admit the evidence on the intermediate fact of common scheme or plan. " 'If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a differe nt theory, a mistaken theory, or one not raised below.' " ( People v. Blacksher (2011) 52 Cal.4th 769, 806, fn. 21.) Though Jessee's intent with respect to the offenses against A. may not have been disputed and F.'s testimony not n ecessarily probative on that par ticular issue, the fact that F.'s testimony was highly prob ative on Jessee's propensity, common design or plan, and the absence of mistake or accident, renders nonprejudicial its admission for the purpose of proving intent. (Accord, People v. Waples , supra , 79 Cal.App.4th at pp. 1395-1396.)17 DISPOSITION The judgment is affirmed.

O'ROURKE, J. WE CONCUR:
McDONALD, Acting P. J.

AARON, J.