Filed 3/9/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN PAUL GRAVES,

Defendant and Appellant.

 A152603

 (San Mateo County

 Super. Ct. No. 16-NF-005927-A)

A jury convicted John Paul Graves1 of one felony count of annoying or 

molesting Jane Doe, a child under 18 (Pen. Code,

2 647.6, subd. (c)(2)) and one 

felony count of lewd acts involving Jane Doe, a child of 14 or 15 years by a 

person at least 10 years older (§ 288, subd. (c)(1)). The trial court later found 

true allegations that Graves had two prior felony convictions within the 

meaning of section 647.6, subdivision (c)(2) and that Graves had served three 

prior prison terms within the meaning of section 667.5. 

Graves claims the court erred by allowing evidence of his past offenses 

to be introduced under Evidence Code section 1108. He claims the trial court 

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II.A., B., C., D., and E. 

1 We note defendant’s last name is listed as “Graves-Ocon” on the 

abstract of judgment, but the trial court record includes signed statements by 

defendant and his parents in which his last name is simply “Graves.”

2 Unless otherwise specified, further statutory references are to the 

Penal Code. 
2

erroneously instructed the jury that the testimony of a single witness could 

suffice to convict him, and that Jane Doe’s out-of-court report of the assault to 

her friend could be used to establish that the assault occurred. He further 

alleges the court was sua sponte obliged to give a unanimity instruction, and 

that his sentence was unauthorized under section 647.6. Finally, in 

supplemental briefing, Graves argues and the People agree, and so de we,

that under Senate Bill No. 136 (2019–2020 Reg. Sess.), effective January 1, 

2020, the sentencing enhancements imposed for service of prior prison terms 

must be stricken. 

In the published portion of this opinion, we affirm the sentence imposed 

on Graves under section 647.6. In the unpublished portion of the opinion we 

reject his other arguments, except for his challenge to the sentence

enhancement. We strike the sentence enhancement imposed under 

section 667.5, subdivision (b) for service of a prior term of incarceration in

state prison. In all other respects, we affirm. The case is remanded for 

resentencing. 

I. BACKGROUND

On May 20, 2016, Jane Doe and her friend Lucy went shopping at a 

mall in San Mateo. Jane was 15 years old at the time. While browsing in a 

clothing store, she noticed Graves was standing close to her. Soon after, 

Graves came up behind Jane, put his hand on her right buttock and 

“squeeze[d] tight.” 

After squeezing Jane’s buttock, Graves entered the store’s changing 

room, removed his shirt, and stepped out of the changing room multiple 

times. He was bare chested and made eye contact with Jane each time. 

Within minutes after Graves grabbed her, Jane told Lucy that Graves 

had touched her. Lucy said that when Jane told her, she was “very upset and 
3

about to start crying.” Jane and Lucy then told the store’s employees that 

Graves had grabbed Jane’s buttock. Mall security detained Graves until 

police arrived. The police conducted a field show-up and, after admonishing 

her, asked Jane to look at a suspect. She identified Graves as the man who 

grabbed her. Police arrested him. He had previous convictions for annoying 

or molesting minors as well as sexual battery of minors. 

The jury returned verdicts finding Graves guilty of annoying or 

molesting a child under the age of 18 in violation of section 647.6, 

subdivision (c)(2) (count 1), and committing a lewd act upon a child age 14 or 

15 years by a person at least 10 years older in violation of section 288,

subdivision (c)(1) (count 2). Two prior felony convictions for violations of 

section 647.6 and three prior terms in state prison as alleged under 

section 667.5, subdivision (b) were found true by the court. On count 1,

Graves was sentenced under section 647.6, subdivision (c)(2) to the middle 

term of four years in prison. The middle term of two years in prison was 

imposed and stayed on count 2, under section 654. An additional year was 

imposed for one of the prior prison terms for a total sentence of five years in 

prison. This appeal is timely. 

II. DISCUSSION

A. Admissibility of Prior Convictions Under Evidence Code 

Section 1108

Graves claims the trial court abused its discretion by allowing the

prosecution to introduce his record of prior sexual offenses under Evidence 

Code section 1108. We disagree. 

1. Additional Facts

The court ruled that Graves’s prior convictions for annoying or 

molesting minors (§ 647.6) and for sexual battery of minors (former § 314.1) 
4

were admissible at trial under Evidence Code section 1108. Based on this

ruling, the parties reached a stipulation that was read to the jury. It stated: 

“One, that on—that in 2013, the defendant was convicted in Santa 

Clara County of the following: On or about July 20th, 2012, the crime of 

annoying or molesting a child under 18 in violation of Penal Code 

Section 647.6[, subdivision (c)(2)], a felony, was committed by John Paul 

Graves who did annoy, molest a child under the age of 18 years, Cassandra 

Doe, 16 years old. 

“Two, that in 2011, the defendant was convicted in San Mateo County 

of the following: On or about September 29, 2010, John Paul Graves-Ocon 

did willfully and unlawfully annoy or molest a child under the age of 18 

years, Gisela M. in violation of Penal Code Section 647.6[, subdivision] (c)(1). 

“Three, that in 2009, the defendant was convicted in San Francisco 

County of the following: That on or about November 26th, 2007, John P. 

Graves did violate Penal Code Section 314.1 in that the defendant did 

willfully and unlawfully and lewdly expose his person and the private parts 

thereof in a public place and in a place where there were present other 

persons to be offended and annoyed thereby, to wit, Lucy F. and Emma M. 

“That on or about November 26th, 2007, John P. Graves did violate 

Penal Code Section 647.6 in that the defendant did willfully and unlawfully 

annoy, molest a child under the age of 18 years, Lucy F, Olivia F, Madeline A, 

Molly D, Sophie H, Allisa G, Emma M and Tabitha S.”

2. Analysis

Evidence Code section 1101 generally prohibits the admission of 

evidence the defendant committed a prior crime to prove the defendant likely 

committed a later crime. (Id., subd. (a).) However, Evidence Code

section 1108, subdivision (a) provides an exception to this rule that allows
5

evidence of a prior sexual offense when a defendant is charged with a sex 

crime.

To prevent unfair misuse of such propensity evidence offered under 

Evidence Code section 1108, the trial court is to weigh its admissibility under

Evidence Code section 352. (Evid. Code, § 1108; People v. Falsetta (1999) 

21 Cal.4th 903, 916–918, 920 (Falsetta).) Under Evidence Code section 352, 

“[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.” “We will 

not overturn or disturb a trial court’s exercise of its discretion under section 

352 in the absence of manifest abuse, upon a finding that its decision was 

palpably arbitrary, capricious and patently absurd.” (People v. Jennings

(2000) 81 Cal.App.4th 1301, 1314 (Jennings).)

The trial court did not abuse its discretion here. The evidence admitted 

under Evidence Code section 1108, subdivision (a) was highly probative 

because, as the Legislature has recognized, “ ‘the willingness to commit a 

sexual offense is not common to most individuals; thus, evidence of any prior 

sexual offenses is particularly probative and necessary for determining the 

credibility of the witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983.) 

Indeed, “ ‘[s]uch evidence “is [considered] objectionable, not because it has no 

appreciable probative value, but because it has too much.” ’ ” (Falsetta, 

supra, 21 Cal.4th at p. 915, italics omitted; People v. Soto, at pp. 989–990.)

Graves counters that his prior convictions were not particularly 

relevant in this case because the charged sexual offenses occurred in a public 

place, not in relative seclusion where there may be no corroborating 

witnesses. Because the potential witnesses in the store testified that they did 
6

not see him touch Jane Doe, Graves argues there is no justification for 

admission of the other crimes. Here, he says the lack of corroboration simply 

shows a reasonable doubt as to his guilt, and does not raise any issue 

regarding his possible propensities. But Graves did not defend the charges 

on the basis that no touching occurred. Rather, he claimed that any touching

was inadvertent or incidental to moving past Jane in the store aisle. 

Whether or not Jane’s claim could have been corroborated by other witnesses 

was not the issue. Graves’s other crimes were highly relevant to prove his 

intent. (Falsetta, supra, 21 Cal.4th at pp. 922–923.) Moreover, Graves cites 

no law to support his argument that the use of prior crimes evidence is

limited to situations in which there are no witnesses to corroborate the 

victim’s claims.

The stipulation also lessened any possible prejudice. “[T]he test for 

prejudice under Evidence Code section 352 is not whether the evidence in 

question undermines the defense or helps demonstrate guilt, but is whether 

the evidence inflames the jurors’ emotions, motivating them to use the 

information, not to evaluate logically the point upon which it is relevant, but 

to reward or punish the defense because of the jurors’ emotional reaction.”

(People v. Valdez (2012) 55 Cal.4th 82, 145.) Here, the stipulation stated the 

charges, the date each offense occurred, the victims’ ages and their first 

names (apparently to show that each of the prior victims was female). The 

stipulation contains no details of the conduct that resulted in the convictions,

thereby making it easier for the jury to evaluate the stipulation objectively 

rather than emotionally. 

Graves still insists the risk of prejudice that the jury would punish him 

for his past conduct was high. But he identifies nothing about the stipulation 

other than the number of prior convictions that would inflame the passions of 
7

the jury. Indeed, this argument is a double-edged sword, because his 

numerous convictions are also part of what make his prior sexual offenses

probative. (Falsetta, supra, 21 Cal.4th at p. 915.) 

In short, we cannot conclude the trial court abused its discretion when 

admitting Graves’s prior convictions under Evidence Code section 1108 

because the convictions were highly relevant to the charges against him and 

were admitted in a manner that minimized their potential to inflame the

jury. 

B. CALCRIM No. 1190 and Due Process

The trial court gave CALCRIM No. 1190 at the end of the trial. It 

provides in its entirety that: “Conviction of a sexual assault crime may be 

based on testimony of a complaining witness alone.” 

Graves argues it was error to instruct with CALCRIM No. 1190 

because there are certain elements of the charged crimes in this case that the 

complaining witness could not possibly know, and it “essentially exhorts the 

jury in sexual misconduct cases to disregard the court’s other instructions 

that the defendant is entitled to an acquittal unless the People have proved 

each element of each charged offense beyond a reasonable doubt.” Again, we 

disagree. 

1. Additional Facts

The trial court provided the jury with other instructions that bear upon 

our analysis of Graves’s claim of error. First, at the beginning and end of the 

trial, the court instructed the jury on the presumption of innocence and the 

People’s burden to prove guilt beyond a reasonable doubt with CALCRIM 
8

No. 220.

3 The court also instructed the jury for each charged crime on the 

elements that were required to be proven beyond a reasonable doubt. 

At the beginning and the end of the trial the court also provided the 

jury with CALCRIM No. 226, on evaluating the credibility of witnesses. That 

instruction, in part, told each juror that: “You, alone, must judge the 

credibility or believability of the witnesses. In deciding whether testimony is 

true and accurate, use your common sense and experience. [¶] You must 

judge the testimony of each witness by the same standards, setting aside any 

bias or prejudice you may have. You may believe all, part, or none of any 

witness’s testimony. Consider the testimony of each witness and decide how 

much of it you believe.” CALCRIM No. 226 also provides the jury with a list 

of considerations for evaluating the truthfulness of witness testimony. At the 

conclusion of the trial, the court also delivered CALCRIM No. 301, stating,

“The testimony of only one witness can prove any fact. Before you conclude 

the testimony of one witness proves a fact, you should carefully review all the 

evidence.” 

Finally, at the end of the trial, the court delivered CALCRIM No. 200, 

which instructed the jury to “[p]ay careful attention to all of these 

instructions and consider them together.” 

2. Analysis

“ ‘ “[T]he correctness of jury instructions is to be determined from the 

entire charge of the court, not from a consideration of parts of an instruction 

 

3 CALCRIM No. 220 provides: “A defendant in a criminal case is 

presumed to be innocent. This presumption requires that the People prove a 

defendant guilty beyond a reasonable doubt. Whenever I tell you the People 

must prove something, I mean they must prove it beyond a reasonable doubt 

[unless I specifically tell you otherwise]. [¶] . . . [¶] . . . Unless the evidence 

proves the defendant[ ] guilty beyond a reasonable doubt, [he] is entitled to 

acquittal, and you must find [him] not guilty.”
9

or from a particular instruction.” ’ ” (People v. Salazar (2016) 63 Cal.4th 214, 

248.) “[W]hen all the instructions are given, ‘a balance is struck which 

protects the rights of both the defendant and the complaining witness.’ ” 

(People v. Gammage (1992) 2 Cal.4th 693, 701 (Gammage).)

In Gammage, our Supreme Court considered whether it was error to 

give CALJIC No. 10.60, concerning testimony by the complaining witness in a 

sex offense trial, in conjunction with the general instruction on a single 

witness’s testimony in CALJIC No. 2.27. The defendant argued the 

combination of the instructions “improperly suggested that the jury should 

view his testimony with caution [citation], but that the testimony of the 

complaining witness need not be viewed with caution.”4 (Gammage, supra, 

2 Cal.4th at p. 697.) The court analyzed the charge in the context of all the

instructions given and rejected the defendant’s argument. (Id. at pp. 700–

701.)

As in Gammage, we analyze Graves’s claim of instructional error by 

examining the entire charge of the court. Here, too, the trial court instructed 

the jury that it must consider all the instructions together. Witness

credibility was for each juror to decide based on “common sense and 

experience” and “setting aside any bias or prejudice.” The jury was 

instructed on the elements the prosecution was required to prove to convict 

 

4 CALJIC No. 10.60 provides: “It is not essential to a finding of guilt on 

a charge of [sexual activity] that the testimony of the witness with whom 

sexual relations is alleged to have been committed be corroborated by other 

evidence.” It is the corollary of CALCRIM No. 1190. CALJIC No. 2.27 

provides: “You should give the [uncorroborated] testimony of a single witness 

whatever weight you think it deserves. Testimony concerning any fact by one 

witness which you believe, [whose testimony about that fact does not require 

corroboration] is sufficient for the proof of that fact. You should carefully 

review all the evidence upon which the proof of that fact depends.” It is the 

corollary of CALCRIM No. 301.
10

Graves of each of the charged crimes. Moreover, “[t]he jury [was] instructed 

that the prosecution must prove its case beyond a reasonable doubt. This 

place[d] a heavy burden of persuasion on a complaining witness whose 

testimony [was] uncorroborated.” (Gammage, supra, 2 Cal.4th at p. 701.) 

Taken together, these instructions informed the jury that Jane’s testimony 

would be sufficient to convict Graves if the jury was convinced that her 

testimony was truthful and if the jury concluded her testimony proved every 

element of the offenses with which Graves was charged beyond a reasonable 

doubt. 

To distinguish his case from Gammage, Graves contends CALCRIM 

No. 1190 does not correctly state the law because “there are often (if not 

always) elements of sexual assault crimes that a complaining witness would 

be unable to establish via testimony.” For example, Graves notes that a 

child’s testimony often cannot establish the final element of count 2 in this 

case, which requires that the child be at least 10 years younger than the 

defendant, because in most cases a child will not know the perpetrator’s age. 

Graves concludes that “[a]s a result, the instructions as a whole fail to 

adequately convey that a defendant cannot be convicted unless the 

prosecution proves each element of each charged offense beyond a reasonable

doubt.” Nonsense. The law is clear that the testimony of a single witness can 

establish any fact. (Evid. Code, § 411.) Any contradictions or weaknesses in 

a witness’s testimony are matters to be explored on cross-examination and 

can be argued to the trier of fact. (People v. Robertson (1989) 48 Cal.3d 18, 

44.) Moreover, Graves’s example of possible deficiency in child testimony is 

of no moment. Graves’s age was proven by the admission of his driver’s 
11

license, so even if the jury misunderstood the charge as Graves argues, the 

purported instructional error was necessarily harmless.

5

 

When the instructions are reviewed together, the only reasonable 

conclusion is that the jury could only convict Graves if the People had proven 

all elements of the charged offenses beyond a reasonable doubt, including any 

elements that could not have been proven by Jane Doe’s testimony alone. 

(People v. Salazar, supra, 63 Cal.4th at p. 248.) 

C. CALCRIM No. 318 and the Fresh Complaint Doctrine

Graves claims the trial court erred by instructing the jury with 

CALCRIM No. 318 because it allowed the jury to consider Lucy’s testimony 

that Jane told her she was touched by Graves shortly after it happened to “be 

considered substantively by the jury to prove Graves’ guilt of the charged 

offenses.” Graves also appears to argue his counsel was ineffective for failing 

to request that CALCRIM No. 318 be modified so that Jane’s statement could 

not be considered as evidence the assault occurred. The Attorney General 

argues this claim was forfeited, and that any possible error was harmless. 

We agree that Graves was not prejudiced by any possible error in admission 

of this statement without a limiting instruction or modification of CALCRIM 

No. 318. 

1. Additional Facts

Lucy testified about what happened in the store with Jane Doe. During 

direct examination, the prosecutor asked her, “Without going into the details 

of it, did she tell you that she was touched?” Lucy responded, “Yes.” Lucy 

said that she and Jane were towards the back of the women’s section near the 

changing room when Jane told her that Graves touched her. Jane was very

 

5 To be clear, it is not reasonable to conclude that the instructions as 

given would have caused such a misperception.
12

upset and about to start crying when she told her. No other details were 

provided about Jane’s disclosure to Lucy. 

2. Analysis

The trial court admitted Lucy’s testimony under the “fresh complaint 

doctrine.” Fresh complaint evidence is admitted “for the limited purpose of 

showing that a complaint was made by the victim, and not for the truth of the 

matter stated. [Citation.] Evidence admitted pursuant to this doctrine may 

be considered by the trier of fact for the purpose of corroborating the victim’s 

testimony, but not to prove the occurrence of the crime.” (People v. Ramirez

(2006) 143 Cal.App.4th 1512, 1522, citing People v. Brown (1994) 8 Cal.4th 

746, 761.)

As given by the trial court, CALCRIM No. 318 provides: “You have 

heard evidence of statements that a witness made before the trial. If you 

decide that the witness made those statements, you may use the statements 

in two ways: [¶] One, to evaluate whether the witness’s testimony in court is 

believable; [¶] And, two, as evidence that the information in those earlier 

statements is true.” Because the last portion of CALCRIM No. 318 would 

allow the jury to conclude Jane’s report to Lucy was true, Graves argues it 

was error to give the instruction or to give it without modification.

We begin by observing that Graves neither objected to CALCRIM 

No. 318 in the trial court nor asked that it be modified. His failure to do 

either ordinarily forfeits this claim. (People v. Sully (1991) 53 Cal.3d 1195, 

1218; see People v. Tuggles (2009) 178 Cal.App.4th 1106, 1130 [failure to 

request modification or amplification of CALCRIM Nos. 318 and 335 forfeited 

claim of instructional error].)

Graves relies on section 1259 to argue there is no forfeiture.

Section 1259 permits an appellate court to “review any instruction given . . . 
13

even though no objection was made thereto in the lower court, if the 

substantial rights of the defendant were affected thereby.” (§ 1259; People v. 

Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) An instructional error violates a 

defendant’s substantial rights if it is reasonably probable the defendant 

would have obtained a more favorable result absent the error. (People v. 

Elsey (2000) 81 Cal.App.4th 948, 953–954, fn. 2.) Accordingly, we will 

consider whether it is reasonably probable the result at trial would have been 

different if CALCRIM No. 318 were refused or modified.

On this record we have no difficulty concluding it would not. Lucy’s 

testimony was limited to confirming that Jane said she was touched. She 

provided no details of the incident. In its entirety, Lucy’s description of 

Jane’s comment lacks sufficient detail to prove either count. But more 

importantly, Jane testified at trial and provided a detailed account of 

Graves’s behavior. “[T]he jury did not have to rely on her secondhand 

statements to other people, but was able to hear her directly and judge her 

credibility. Her fresh complaint statements were consistent with and 

cumulative to her trial testimony. [Citation.] Thus, we conclude any 

instructional error was harmless.” (People v. Manning (2008) 

165 Cal.App.4th 870, 881; accord, People v. Ramirez (2006) 143 Cal.App.4th 

1512, 1526–1527.) 

D. Ineffective Assistance of Counsel 

Graves alternatively claims his trial counsel was ineffective for failing 

to object to CALCRIM No. 318 or to request a proper instruction. To 

establish ineffective assistance of counsel, Graves must prove (1) that his 

trial counsel’s representation was deficient because it fell below an objective 

standard of reasonableness under prevailing professional norms, and (2) the 

deficiency caused him prejudice. (People v. Maury (2003) 30 Cal.4th 342, 389; 
14

Strickland v. Washington (1984) 466 U.S. 668, 687.) If a defendant makes an 

insufficient showing on either of those components, a claim of ineffective 

assistance of counsel fails. (People v. Holt (1997) 15 Cal.4th 619, 703; 

Strickland, at p. 687.) In light of our conclusion that Graves cannot show he 

was prejudiced by any instructional error, his ineffective assistance claim 

fails. 

E. Unanimity Instruction

Graves contends a unanimity instruction was required because “the 

prosecutor argued and presented evidence that Graves had violated 

section 647.6 in two distinct ways: first, he had allegedly squeezed Jane 

Doe’s right buttock with his hand; and second, he allegedly came in and out of 

a co-ed dressing room without a shirt and stared at Jane Doe.” Graves’s

contention is based on a mischaracterization of the record and therefore lacks 

merit. 

1. Additional Facts

During her closing argument, the prosecutor repeatedly emphasized 

that Graves had grabbed Jane Doe’s buttock. In discussing the evidence in 

support of count 1, annoying or molesting a child under the age of 18 in 

violation of section 647.6, the prosecutor said, “Would a reasonable person, a 

normal person without hesitation have been disturbed by this conduct? Some 

random stranger, an adult male you don’t know, suddenly comes to you and 

grabs your buttocks in the store. Yes, absolutely.” In wrapping up her 

argument on this count, the prosecutor mused, “How does one accidentally 

grab another person’s buttocks, and she specifically felt the squeeze of her 

buttocks.” When applying the facts to the elements of count 2, a lewd act 

involving a child of 14 or 15 years by a person at least 10 years older in 

violation of section 288, subdivision (c)(1), the prosecutor described the first 
15

element as requiring proof “the Defendant willfully touched any part of a 

child’s body, either on the bare skin, . . . or it can be through clothing.” The 

prosecutor relied on Jane Doe’s testimony that Graves “touched her buttocks 

through the clothing over the clothes” to prove this element. 

Indeed, the only time the prosecutor mentioned Graves’s shirtless 

appearances from the store’s changing room was during her rebuttal 

argument. In closing, defense counsel claimed that “one-second-incidental 

conduct in a public place is not child molestation.” The prosecutor began 

rebuttal by observing that counsel’s one-second characterization of Graves’s

act did not take into account its many ramifications, among them that “one 

second doesn’t take into account the fact that the Defendant was coming out 

of the fitting room without a shirt on making eye contact with [Jane Doe] just 

staring over at her multiple times.” Other than this brief comment that 

Graves’s emergence from the fitting room evidenced his intent, the prosecutor 

never again mentioned this behavior. Rather, the gravamen of the 

prosecution’s argument was that Jane was “able to discern between an 

inadvertent bump and an intentional squeeze.” 

3. Analysis

A criminal defendant has a constitutional right to a unanimous jury 

verdict. (Cal. Const., art. I, § 16.) “ ‘Additionally, the jury must agree 

unanimously the defendant is guilty of a specific crime. [Citation.] 

Therefore, cases have long held that when the evidence suggests more than 

one discrete crime, either the prosecution must elect among the crimes or the 

court must require the jury to agree on the same criminal act.’ ” (People v. 

Hawkins (2002) 98 Cal.App.4th 1428, 1452, italics added.) No duty to 

instruct exists if the prosecutor elects to rely on a specific act to prove the 

charge. (People v. Salvato (1991) 234 Cal.App.3d 872, 878–880.)
16

“The duty to instruct on unanimity when no election has been made 

rests upon the court sua sponte.” (People v. Melhado (1998) 60 Cal.App.4th 

1529, 1534.) “[S]uch an instruction must be given sua sponte where the 

evidence adduced at trial shows more than one act was committed which 

could constitute the charged offense, and the prosecutor has not relied on any 

single such act.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 274–275.)

Here, the prosecutor elected to use Graves’s grabbing Jane Doe’s 

buttock as the offending conduct to prove both counts. Her closing argument 

focused exclusively on that act as the criminal conduct. Only when defense 

counsel argued that Graves’s contact with Jane was incidental or inadvertent 

did the prosecutor rely on his repeated shirtless displays and eye contact to 

demonstrate his intent and sexual motivation. Given the prosecutor’s 

exclusive focus on the grabbing as the basis for both counts, the court had no 

duty to give a unanimity instruction.6

F. Authorized Sentence Under Section 647.6

Section 647.6, subdivision (c)(2) provides an enhanced sentence of two, 

four or six years in prison for a defendant with a record of certain prior 

crimes who is convicted of violating the statute. Graves was assessed a 

midterm sentence of four years for his violation of section 647.6. He asserts 

this enhanced sentence was unauthorized because neither of his two prior 

 

6 This argument is somewhat nuanced in the briefing. Graves 

acknowledges that in light of the jury verdict rejecting his defense of 

inadvertent contact with Jane, the failure to give a unanimity instruction 

would be harmless error, citing People v. Diedrich (1982) 31 Cal.3d 263, 283. 

Thus, he says, reversal would only be required in the event we were to 

reverse count 2 on one of the grounds argued in his brief. We have not, and 

neither does the record support his claim that the jury could have, considered 

his shirtless displays as the basis for one of the charged crimes. 
17

felony convictions for violations of section 647.6 involved a minor under 14 

years of age. Graves’s argument is based upon a misreading of the statute.

Section 647.6, subdivision (c)(2) provides: “Every person who violates 

this section after a previous felony conviction under Section 261, 264.1, 269, 

285, 286, 287, 288.5, or 289, or former Section 288a, any of which involved a 

minor under 16 years of age, or a previous felony conviction under this 

section, a conviction under Section 288, or a felony conviction under 

Section 311.4 involving a minor under 14 years of age shall be punished by 

imprisonment in the state prison for two, four, or six years.” 

Under the longstanding “last antecedent rule” of statutory 

interpretation, “ ‘qualifying words, phrases and clauses are to be applied to 

the words or phrases immediately preceding and are not to be construed as 

extending to or including others more remote.’ ” (White v. County of 

Sacramento (1982) 31 Cal.3d 676, 680.) “Evidence that a qualifying phrase is 

supposed to apply to all antecedents instead of only to the immediately 

preceding one may be found in the fact that it is separated from the 

antecedents by a comma.” (Ibid.) However, the use of a disjunctive such as 

the word “or” denotes alternative or separate categories. (Ibid.)

Applying the last antecedent rule to subdivision (c)(2) of section 647.6, 

the phrase “involving a minor under 14 years of age” modifies the 

immediately preceding phrase “or a felony conviction under Section 311.4.” 

The statute’s use of the word “or” “indicates an intention to use it 

disjunctively so as to designate alternative or separate categories.” (White v. 

County of Sacramento, supra, 31 Cal.3d at p. 680.) The phrase “involving a 
18

minor under 14 years of age” therefore does not extend to other clauses in 

section 647.6, subdivision (c)(2).7 

This limiting application of the phrase is further apparent because 

other age requirements are mentioned within section 647.6, 

subdivision (c)(2)’s specification of prior offenses. For example, “a previous 

felony conviction under Section 261, 264.1, 269, 285, 286, 287, 288.5, or 289, 

or former Section 288a,” are all modified by the clause “any of which involved 

a minor under 16 years of age.” 

The trial court correctly determined that Graves should be punished 

per section 647.6, subdivision (c)(2) based on his prior convictions, which did 

not require proof that the convictions involved a minor under 14 years of age. 

Graves had prior convictions for felony annoying or molesting a child under 

18 in violation of section 647.6, subdivision (c)(2) in 2012, and felony 

annoying or molesting a child in violation of section 647.6, subdivision (c)(1)

in 2007. These two prior felony convictions for violating section 647.6

authorized the court to impose a four-year sentence on Graves under 

subdivision (c)(2). 

 

7 There is an exception to the last antecedent rule “which ‘provides 

that “ ‘[w]hen several words are followed by a clause which is applicable as 

much to the first and other words as to the last, the natural construction of 

the language demands that the clause be applicable to all.’ ” ’ ” (Lickter v. 

Lickter (2010) 189 Cal.App.4th 712, 726.) We are aware of no case that 

applies the exception to disregard the effect of clauses, like those in 

section 647.6, subdivision (c)(2), that are written “disjunctively so as to 

designate alternative or separate categories” (White v. County of Sacramento, 

supra, 31 Cal.3d at p. 680).
19

G. The Sentencing Enhancement for a Prior Prison Term Must 

Be Stricken 

The sentence imposed included a one-year enhancement under 

section 667.5, subdivision (b) due to Graves’s incarceration in state prison for 

two prior violations of section 647.6. Effective January 1, 2020, section 667.5 

was amended to limit the prior prison terms that qualify for the enhancement 

to those served “for a sexually violent offense as defined in subdivision (b) of

Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); Stats. 

2019, ch. 590, § 1.) Under the new law, prison terms served for violations of 

section 647.6 no longer qualify for enhancement under section 667.5,

subdivision (b).

When the Legislature acts to lessen or eliminate the prescribed 

punishment for an offense, the reduction must be applied in all cases that are 

not yet final when the statute becomes effective. (In re Estrada (1965) 

63 Cal.2d 740; accord, People v. Nasalga (1996) 12 Cal.4th 784, 792.) Such is 

the case here. The People agree, and so do we. 

The one-year enhancement imposed for Graves’s prior service of a term 

in state prison must be stricken, and we will remand for resentencing to 

allow the trial court to exercise its sentencing discretion in light of this 

modification. (People v. Navarro (2007) 40 Cal.4th 668, 681–682.)

III. DISPOSITION

The one-year enhancement of sentence imposed under section 667.5,

subdivision (b) for Graves’s prior service of a term in state prison is stricken. 

The judgment in all other respects is affirmed. The case will be remanded for 

resentencing on both counts to allow the trial court to exercise its discretion

in light of this modification.
20

____________________________

Siggins, P. J.

We concur:

_____________________________

Petrou, J.

_____________________________

Jackson, J.

A152603

People v. Graves
21

Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Joseph C. Scott

Counsel: 

Tiffany J. Gates, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, 

Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, Seth K. Schalit, 

and Roni Dina Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.