Filed 7/31/23 P. v. Bethell CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN WILLIAM BETHELL,

Defendant and Appellant.

 D079729

 (Super. Ct. No. FSB19004093)

APPEAL from a judgment of the Superior Court of San Bernardino, 

Harold T. Wilson, Jr., Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

A jury found Steven William Bethell guilty of two counts of inflicting 

corporal injury on a spouse or cohabitant (Pen. Code, §273.5, subd. (a))1, 

sexual penetration of an unconscious or asleep person (§ 289, subd. (d)), and 

sexual penetration of a drugged person with a foreign object (§ 289, subd. (e)). 

The trial court sentenced him to ten years in prison. 

Bethell asserts several arguments on appeal. First, he contends his 

right to a speedy trial, under both the federal and state Constitutions as well 

as California statutory law, was violated due to prosecution dismissals 

coupled with COVID-19 pandemic-related delays. Second, he contends his 

rights to due process and a fair trial were violated by the consolidation of 

three cases. Third, Bethell argues his right to due process was violated by 

the admission of evidence of uncharged acts of sexual assault and domestic 

violence under Evidence Code sections 1108 and 1109, respectively. Finally, 

Bethell takes issue with four jury instructions regarding the use of charged 

and uncharged acts of sexual assault and domestic violence for purpose of 

propensity evidence. We conclude none of Bethell’s arguments have merit 

and therefore affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

A jury found Bethell guilty of two counts of inflicting corporal injury on 

a spouse or cohabitant (§ 273.5, subd. (a); counts 3 & 4), sexual penetration of 

an unconscious or asleep person (§ 289, subd. (d); count 5), and sexual 

penetration of a drugged person with a foreign object (§ 289, subd. (e);

count 6). The jury acquitted Bethell of forced oral copulation (§ 287, 

subd. (c)(2)(A); count 1) and was unable to reach a verdict as to a second 

count of the same charge (count 2). 

1 Unless otherwise indicated, all further statutory references are to the 

Penal Code.
3

The charges involved two victims, S.M. and B.W.

A. Crimes Against S.M. (Counts 1 through 4)

S.M. became romantically involved with Bethell in 2017 and moved 

into his mobile home in Big Bear in February 2018. Bethell assaulted her for 

the first time shorty after they moved in together. 

In March 2018, Bethell pushed S.M. into a door frame and she suffered 

a black eye. When her eye was still healing, he pushed her into a stack of 

wooden pallets and she reinjured the same eye. He caused her to have black 

eyes about two more times. S.M. testified that he assaulted her every few 

weeks—pulling her hair, pushing her into things. 

In February or March 2019, after having consensual sex, Bethell told 

S.M. to orally copulate him. She did not want to but complied because he was 

being demanding and angry, and she thought he would hurt her if she did 

not. She cried the whole time. 

On June 10, 2019, Bethell blamed her for an eviction notice from the 

mobile home park. He became violent, punched her in the stomach, 

threatened her with an axe, pushed her to the floor, and put his hands over 

her mouth and on her neck. As she struggled to get away from him, a dresser

fell over and power tools that were on top of the dresser fell on her, causing 

her to bleed. Bethell allowed her to use the kitchen sink to clean herself up, 

then came up behind her and told her to get on her knees and orally copulate 

him, saying “get on your knees and suck the dick, bitch.” She complied 

because she was fearful for her life. She was “shaking and crying” as she did 

so. S.M. went to the police after this incident and gave a statement about 

what happened. 

W.M. lived with Bethell and S.M. in a spare bedroom for approximately 

one year in 2018 and 2019. He testified that he saw Bethell physically 
4

assault S.M. often and described one incident when Bethell screamed at S.M., 

chased her around the house, pushed her to the ground, slapped her head and 

face, and pulled her hair. At times, he saw S.M. bleeding from injuries 

caused by Bethell. 

The jury convicted Bethell of two counts of domestic violence against 

S.M. The jury did not convict Bethell of two counts of forced oral copulation 

of S.M. 

B. Crimes Against B.W. (Counts 5 and 6)

B.W. was in a five-year romantic relationship with Bethell from 2012 to 

2017. They began living together in 2015 and Bethell began physically 

abusing her soon after. He also controlled her anxiety medication. On five or 

six occasions, B.W. woke up with vaginal bleeding and was “not able to walk,” 

and she had no recollection of the night before. 

Eighteen months after terminating her relationship with Bethell, B.W. 

became aware of approximately 200 disturbing images on an old computer 

that belonged to Bethell. The images depicted her laying down “look[ing] 

dead,” with Bethell’s arm inside her vagina. B.W.’s current boyfriend J.B. 

found the images on the computer and testified about the content of the 

images. He said B.W. looked “obviously unconscious,” “fully nude,” and 

“propped up on the bed,” bleeding from her vagina, with Bethell sitting on a 

chair in front of the bed “pretty much sodomizing her with his hands.” 

Bethell’s hand was inside B.W. up to his elbow. In some pictures, there was a 

bottle with writing in permanent marker that said GHB, which B.W. thought 

was a date rape drug. A forensic toxicologist testified that GHB or Xanax, 

particularly mixed with alcohol could cause a state of unconsciousness such

that one would be unaware of being sexually assaulted. 
5

The jury convicted Bethell of two sexual offenses against B.W.:

(1) sexual penetration of an unconscious or asleep person, and (2) sexual 

penetration by anesthesia or controlled substance. 

DISCUSSION

I. Bethell’s Right to a Speedy Trial Was Not Violated

Bethell’s contention that his conviction must be reversed because he 

was denied the right to a speedy trial involves two periods of delay: (1) a 

time period of delay caused by the prosecutor refiling charges three times, 

and the trial court’s order denying Bethell’s motion to dismiss the third filing; 

and (2) a time period of delay caused by continuances due to the disruption of

the trial court’s operations caused by the COVID-19 pandemic. We conclude 

the trial court did not abuse its discretion in denying Bethell’s motion to 

dismiss the third filing because the second dismissal was on the court’s own 

motion and there was excusable neglect. Next, we conclude the delays due to 

the COVID-19 pandemic did not violate Bethell’s right to a speedy trial 

because the pandemic constituted good cause for the delay and Bethell failed 

to show prejudice from the delay. 

1. The Trial Court Did Not Abuse Its Discretion by Denying 

Bethell’s Motion to Dismiss the Prosecution’s Third Filing

a. Additional Facts

The prosecution originally filed a complaint against Bethell in case 

number FSB19002126. After motions in limine, on the People’s motion based 

on newly discovered evidence, the case was dismissed pursuant to 

section 1385 and both parties stipulated to the case proceeding under the 

same case number pursuant to section 1387.2. 

In the second case, on November 18, 2019, the court indicated that a 

jury panel would be screened and motions in limine would be heard on 
6

December 2, 2019. On the afternoon of December 2, the court stated on the 

record “we had a chambers’ conference earlier regarding availability of the 

People’s witness.” The prosecutor confirmed “yes, your honor, our last 

contact with the victim in this case was on the 15th. We’ve lost contact with 

her. We’ve been unable to locate her. Investigators have been working to try 

to find her. As of right now, we are unable to do so.” The court responded, 

“today was the 60th day. People being unable to proceed, the court will 

dismiss the case under section 1387.” The court then asked if the People 

intended to refile and the prosecutor stated they would.2 

That same day, the People filed a complaint against Bethell under a 

new case number FSB19004093, alleging one count of oral copulation. 

Bethell moved to dismiss, arguing that the complaint was barred under the 

two-dismissal rule of section 1387 and that the prosecution could not meet its 

burden of showing excusable neglect under section 1387.1, which would 

permit a third refiling. In opposition, the People represented that on 

December 2, the prosecutor notified the court and defense counsel that she 

had not heard from the victim recently but believed she could begin trial in 

anticipation of the victim appearing. The court told the prosecutor that she 

had until 2:00 p.m. to produce the witness in court or the case would be 

dismissed. The prosecutor was unable to contact the victim and the court 

dismissed the case that afternoon. 

At a hearing on December 12, 2019, Bethell asserted that the 

prosecutor dismissed both the first and second filings in bad faith after 

2 Bethell’s unopposed request for judicial notice, filed on February 6, 

2023 is granted. Pursuant to Evidence Code section 452, subdivision (d), we 

take judicial notice of the reporter’s transcripts and court documents from 

case number FSB19002126, as outlined in Bethell’s request and as previously 

prepared by the Clerk of the San Bernardino County Superior Court.
7

receiving unfavorable evidentiary rulings on its motions in limine. The trial 

court reviewed the reporter’s transcript from the December 2, 2019 hearing 

and stated multiple times that it showed the court dismissed the case on its 

own motion, not the prosecution’s. The court explained that there was a 

difference between the People wanting to proceed on a case while hoping to

get a witness to appear and having to later dismiss because they were not 

able to, as opposed to the court not allowing the People to proceed in the first 

place. The court then indicated that if the prosecutor did not have a witness 

in court when the court wanted them there, that would amount to excusable 

neglect. 

To show due diligence in attempting to secure the victim’s appearance 

in court, a district attorney investigator testified that he served the victim 

with a summons to appear in August 2019. The victim advocate also testified 

that she was in contact with the victim, who was cooperative. However, the 

last time she was able to get into contact with the victim prior to the 

December 2, 2019 hearing was on November 15, 2019. She left voicemails for 

the victim on November 18 and November 27, but had not heard back from 

the victim by the December 2 hearing. She further testified that the victim 

had called her that morning, on December 12, and provided her with a new 

address and new phone number. That was the first time she spoke with the 

victim since November 15. 

Another district attorney investigator testified that on December 2 at 

around 8:00 a.m., he drove to the victim’s last known address at the time, 

which was the mobile home park in Big Bear. Once he arrived at around 

12:00 p.m., he observed that the mobile home was obviously vacant. 

After hearing this evidence, the trial court confirmed its stated finding 

that the second filing was dismissed on the court’s own motion due to the 
8

prosecutor’s excusable neglect, and allowed the third filing to proceed under 

section 1387.1. 

b. Applicable Law

Section 1387, subdivision (a) provides in pertinent part: “An order 

terminating an action pursuant to this chapter . . . is a bar to any other 

prosecution for the same offense if it is a felony . . . and the action has been 

previously terminated pursuant to this chapter . . . .” This commonly is 

called the two-dismissal rule in felony cases. (People v. Mason (2006) 140 

Cal.App.4th 1190, 1195 (Mason).) 

Section 1387.1 carves out an exception to the two-dismissal rule when 

the action involves a violent felony, as defined in section 667.5. Under 

section 1387.1, a third filing is permitted where (1) either of the prior 

dismissals were “due solely to excusable neglect,” and (2) the conduct of the 

prosecution did not “amount[] to bad faith.” (Mason, supra, at p. 1196.)

The statute broadly defines excusable neglect by stating it “includes, 

but is not limited to, error on the part of the court, prosecution, law 

enforcement agency, or witnesses.” (§ 1387.1, subd. (b).) “ ‘ “[E]xcusable 

neglect is neglect that might have been the act or omission of a reasonably 

prudent person under the same or similar circumstances.” ’ ” (People v. 

Massey (2000) 79 Cal.App.4th 204, 211 (Massey), quoting People v. Woods

(1993) 12 Cal.App.4th 1139, 1149 (Woods.) 

The application of section 1387.1 is a discretionary determination for 

the trial court, which should be afforded great weight unless clear abuse of 

discretion is demonstrated. (Massey, supra, 79 Cal.App.4th at p. 211.) And 

“ ‘[u]nless inexcusable neglect is clear, the policy favoring trial on the merits 

prevails.’ ” (Ibid., quoting Woods, supra, 12 Cal.App.4th at p. 1149, italics 

added by Massey.)
9

c. Analysis

As an initial matter, the only offense that was dismissed and refiled a 

third time was one count of forcible oral copulation (§ 287, subd. (c)(2)(A)). 

The other counts were filed in separate complaints and later consolidated, as 

discussed below. As such, the only offense subject to this section 1387.1 

analysis is forcible oral copulation, which qualifies as a violent offense as 

defined in section 667.5 and is therefore subject to section 1387.1’s exception 

to the two-dismissal rule. (See § 667.5, subd. (c)(5).) Bethell does not dispute 

this. 

As he did below, Bethell contends that on December 2, the court gave 

the prosecutor a choice between dismissing the second filing or starting trial, 

and that the prosecutor opted to dismiss. However, the transcript from the 

December 2 hearing shows otherwise. There is no indication that the court 

allowed the prosecutor to choose to proceed or that the prosecutor moved to 

dismiss. Rather, the court dismissed the case on its own after the prosecutor 

informed the court that she lost contact with the victim and that 

investigators had been trying to find her but were unable to locate her.3 

Bethell contends that when the court considered his motion to dismiss 

on December 12, it did not have the December 2 transcript. However, the 

December 12 transcript shows the trial court did review the earlier 

transcript, stating “if you review the transcript, the dismissal was made by 

the court.” The court even quoted the earlier judge, reading “ ‘Today is the 

3 The minute order from the December 2 hearing states “[u]pon motion of 

the People: Case Dismissed.” However, we rely on the reporter’s transcript 

based on the rule that “[c]onflicts between the reporter’s and clerk’s 

transcripts are generally presumed to be clerical in nature and are resolved 

in favor of the reporter’s transcript unless the particular circumstances 

dictate otherwise.” (In re Merrick V. (2004) 122 Cal.App.4th 235, 249; 

People v. Smith (1983) 33 Cal.3d 596, 599.)
10

60th day. People being unable to proceed, the [c]ourt will dismiss the case 

under 1387.’ ” As such, the record does not support Bethell’s argument that 

the People chose to dismiss the second filing or did so in bad faith. 

Next, we conclude the trial court did not abuse its discretion in finding 

that the second dismissal was the result of excusable neglect. The neglect 

was the failure of the People to have the victim in court on the date set for 

trial, on December 2, 2019. This neglect was excusable because reasonable 

efforts were made to maintain contact with the victim to ensure that she 

would appear in court when needed. And when the victim advocate lost 

contact with the victim after November 15, the prosecution’s investigator 

drove to the victim’s last known address in an attempt to locate her. The 

unsuccessful efforts to contact the victim were explained when the victim 

later, but not until December 12, informed the victim advocate that she had a 

new address and new phone number. Based on this, we cannot say that the 

People’s failure to secure the victim’s attendance in court on December 2 was 

clearly inexcusable. 

2. The Delay Due to the COVID-19 Pandemic Was Justified and 

Bethell Failed to Show Prejudice from the Delay

a. Additional Facts

As discussed earlier, after two dismissals, the People filed the instant 

complaint under case number FSB19004093 on December 2, 2019. 

Additional felony charges were filed under case numbers FSB19004237 and 

FSB19004365 on December 13 and 24, 2019, respectively. A preliminary 

hearing occurred for all three matters on March 23, 2020 and Bethell was 

held to answer. Individual informations for each of the three matters were

filed on March 30, 2020. On April 1, 2020, Bethell entered not guilty pleas to 

all charges and all three matters were set for jury trial on May 26, 2020. 
11

From April 24, 2020 until March 9, 2021, the trials were continued at 

least nine times due to the COVID-19 pandemic emergency orders and there 

being no available courtrooms. During that time period, the trials were also 

continued at least 10 times by stipulation, Bethell’s request, defense counsel’s 

unavailability, or due to Bethell being hospitalized or being quarantined. 

During this entire time, general orders were in place that extended the 

deadline to hold a criminal trial due to the exceptional circumstance of the 

COVID-19 pandemic.4

On March 10, 2021, the trial court granted the prosecution’s motion to 

consolidate the three cases against Bethell, and sent the matter to trial. A 

jury panel was sworn the next day, March 11, 2021. 

b. Federal Constitutional Challenge

“For the federal Constitution’s speedy trial right, the United States 

Supreme Court has articulated a balancing test that requires consideration of 

the length of the delay, the reason for the delay, the defendant’s assertion of 

the right, and prejudice to the defense caused by the delay.” (People v. 

Martinez (2000) 22 Cal.4th 750, 755 (Martinez), citing Barker v. Wingo (1972) 

407 U.S. 514, 530 (Barker), italics omitted.) “When the delay is of sufficient 

length to be presumptively prejudicial, any actual prejudice is balanced with 

4 On our own motion, we take judicial notice of the general orders of the 

presiding judge of the San Bernardino County Superior Court, which 

extended the deadline to hold criminal trials due to the pandemic during the 

timeframe when Bethell’s trial was delayed. (Super. Ct. San Bernardino 

County, Gen. Orders (April 1, 2020 – February 18, 2021), < COVID-19: 

COURT OPERATIONS DURING THE COVID-19 PANDEMIC | Superior 

Court of California (sb-court.org) > [as of July 31, 2023], archived at 

<https://perma.cc/WJ9U-Y9EU>.)
12

the other Barker factors, including the justification for the delay.” (Elias v. 

Superior Court (2022) 78 Cal.App.5th 926, 938 (Elias).) 

The Supreme Court has observed that “[d]epending on the nature of the 

charges, the lower courts have generally found postaccusation delay 

‘presumptively prejudicial’ at least as it approaches one year.” (Doggett v. 

U.S. (1992) 505 U.S. 647, 652, fn. 1 (Doggett).) Here, the approximate 11-

month delay experienced by Bethell “approaches one year.” (Ibid.) We 

accordingly assume, for the sake of our analysis, that he has shown 

presumptive prejudice. We therefore proceed to conduct a balancing of any 

actual prejudice with the other Barker factors. (Elias, supra, 78 Cal.App.5th 

at p. 938.)

As we have explained, the four Barker factors are “the length of the 

delay, the reason for the delay, the defendant’s assertion of the right, and 

prejudice to the defense caused by the delay.” (Martinez, supra, 22 Cal.4th at 

p. 755.) “None of these four factors is ‘either a necessary or sufficient 

condition to the finding of a deprivation of the right of speedy trial. Rather, 

they are related factors and must be considered together with such other 

circumstances as may be relevant.’ [Citation.] ‘The burden of demonstrating 

a speedy trial violation under Barker’s multifactor test lies with the 

defendant.’ ” (People v. Bradley (2020) 51 Cal.App.5th 32, 41 (Bradley).)

Regarding the first factor, i.e., the length of the delay, we consider “the 

extent to which the delay stretches beyond the bare minimum needed to 

trigger judicial examination of the claim.” (Doggett, supra, 505 U.S. at 

p. 652.) Because “the presumption that pretrial delay has prejudiced the 

accused intensifies over time” (ibid.), “in ways that neither party can prove 

or, for that matter, identify” (id. at p. 655), it is significant when the “delay 

before trial was uncommonly long” (id. at p. 651). Here, because the 
13

approximate 11-month delay does not in any sense “stretch[ ] beyond the bare 

minimum needed to trigger judicial examination of the claim” (id. at p. 652), 

it cannot reasonably be described as “uncommonly long” (id. at p. 651), and 

thus does not meaningfully contribute to the finding of a speedy trial 

violation under the Barker factors. 

“In applying the second factor, the reason for the delay, the United 

States Supreme Court has asked, ‘whether the government or the criminal 

defendant is more to blame for th[e] delay.’ [Citation.] A delay meant to 

hamper the defense weighs heavily against the prosecution, while more 

neutral reasons such as negligence or overcrowded courts weigh less heavily.” 

(Bradley, supra, 51 Cal.App.5th at p. 41.) Here, it is undisputed that the 

COVID-19 pandemic was the primary cause for the delay and Bethell does 

not contend that the government was at all to blame. As we explained in 

Elias, “[c]ourts have recognized that ‘[h]ealth quarantines to prevent the 

spread of infectious diseases have long been recognized as good cause for 

continuing a trial date.’ [Citations.] ‘ “A contrary holding would require trial 

court personnel, jurors, and witnesses to be exposed to debilitating and 

perhaps life-threatening illness. Public health concerns trump the right to a 

speedy trial.” ’ ” (Elias, supra, 78 Cal.App.5th at p. 942.) In the context of 

the COVID-19 pandemic, Elias observed, “The backlog here was not a routine 

or chronic condition for the court. The COVID-19 pandemic has been a 

‘ “unique, nonrecurring event[ ]” ’ which ‘ “ha[s] produced an inordinate 

number of cases for court disposition.” ’ [Citation.] Although the 

continuances in this case have been lengthy, the COVID-19 pandemic has 

been ‘of such severity as to justify’ the continuance.” (Id. at p. 941.) As in 

Elias, “[w]e acknowledge the ‘ “unfortunate hardship to defendant” ’ from the 

delays in this case, but, . . . ‘ “neither the prosecution nor the court is 
14

responsible for the emergency that has overwhelmed the nation and much of 

the world.” ’ ” (Id. at p. 942.) As in Elias, we accordingly conclude that the 

COVID-19 pandemic constituted good cause for the delay of Bethell’s trial.

“In assessing the third Barker factor (i.e., defendant’s assertion of his 

speedy trial right), we note ‘the weight ascribed to complaints of pretrial 

delay ordinarily depends upon their frequency and force.’ ” (Bradley, supra, 

51 Cal.App.5th at p. 42.) Here, the People acknowledge that Bethell 

repeatedly asserted his right to a speedy trial. 

“For the fourth and final Barker factor, prejudice to the defendant, we 

must consider the circumstances of this case in light of the interests the 

speedy trial right is intended to protect. [Citation.] Those interests, as 

identified by the United States Supreme Court, are ‘(i) to prevent oppressive 

pretrial incarceration; (ii) to minimize anxiety and concern of the accused; 

and (iii) to limit the possibility that the defense will be impaired.’ ” (Bradley, 

supra, 51 Cal.App.5th at p. 43.) “Of these, the most serious is the last, 

because the inability of a defendant adequately to prepare his case skews the 

fairness of the entire system. If witnesses die or disappear during a delay, 

the prejudice is obvious. There is also prejudice if defense witnesses are 

unable to recall accurately events of the distant past.” (Barker, supra, 407 

U.S. at p. 532.) 

Here, Bethell argues he suffered a detrimental impact on his life, was 

subject to anxiety, and contracted COVID-19. He also contends his defense 

was negatively impacted by the delay because it resulted in a second 

complaining witness coming forward and two additional complaints being 

filed, and gave the two witnesses the opportunity to coordinate their 

testimony. This argument is misguided because the additional complaints 

were filed prior to the COVID-19 delays and any opportunity the prosecution 
15

had to strengthen its case (although Bethell points to no support for this in 

the record) does not equate to impairment of his ability to present a defense 

such as the loss of exculpatory evidence or dimming memories. Regarding 

Bethell’s other interests, as we explained in Elias, “[a]lthough he has had a 

lengthy incarceration during the pendency of his unresolved criminal 

charges, he is in the same position as hundreds of other in custody 

defendants awaiting trial due to COVID-19 pandemic delays.” (Elias, supra, 

78 Cal.App.5th at p. 943.) “ ‘Significant pretrial incarceration may support a 

presumption of prejudice, but this prejudice “unenhanced by tangible 

impairment of the defense function and unsupported by a better showing on 

the other factors than was made here, does not alone make out a deprivation 

of the right to a speedy trial.” ’ ” (Bradley, supra, 51 Cal.App.5th at p. 43.) 

Based on the four Barker factors, we conclude that in light of the 

minimal prejudice identified by Bethell, weighed against the good cause for 

the delay arising from the COVID-19 pandemic, Bethell has not established 

that he was deprived of his federal constitutional right to a speedy trial. 

c. California Constitutional Challenge

In a speedy trial challenge based on the California Constitution, “[t]he 

defense has the initial burden of showing prejudice from a delay in bringing 

the defendant to trial. Once the defense satisfies this burden, the prosecution 

must show justification for the delay. If the prosecution does that, the trial 

court must balance the prejudice to the defendant resulting from the delay 

against the prosecution’s justification for the delay.” (People v. Lowe (2007) 

40 Cal.4th 937, 942.)

Here, Bethell’s challenge under the California Constitution fails at the 

first step. As we have discussed above, although Bethell contends he was 
16

prejudiced by the COVID-19 delays, he has not shown actual prejudice or 

impairment of his ability to present a defense.

Even if we were to assume for the sake of our analysis that Bethell 

established he was prejudiced, at least to some extent by the delay in 

bringing his case to trial, the COVID-19 pandemic constituted good cause for 

the delay, as we have already discussed. In balancing any minimal prejudice 

that Bethell may have incurred against the good cause for the delay, we 

conclude that Bethell has not established a violation of his right to a speedy 

trial under the California Constitution. 

d. California Statutory Violation

“ ‘ “To implement an accused’s constitutional right to a speedy trial, the 

Legislature enacted section 1382.” ’ ” (Hernandez-Valenzuela v. Superior 

Court (2022) 75 Cal.App.5th 1108, 1122.) Section 1382 generally provides 

that, unless good cause to the contrary is shown or a waiver is obtained from 

the defendant, the court shall dismiss a felony prosecution that is not brought 

to trial within a 60-day statutory deadline after arraignment. 

On appeal, Bethell asserts but does not develop an argument for a 

statutory violation of section 1382. Any such argument would fail based on

this court’s recent opinion in Elias. In Elias we explained that because of 

“[t]he series of emergency orders from the Chief Justice” that “extended the 

section 1382 period to commence trials for criminal defendants due to the 

COVID-19 pandemic,” the time to bring the defendant to trial under 

section 1382 had not expired, and there was accordingly no violation of 

Bethell’s statutory right to a speedy trial. (Ibid; People v. Rubaum (1980) 110 

Cal.App.3d 930, 934 [showing of good cause for continuance is not required if 

the statutory time has not expired].) 
17

II. Consolidation of the Charges Was Not an Abuse of Discretion nor Did It 

Violate Bethell’s Due Process Rights

The People initiated three separate cases against Bethell, all involving 

charges of sexual assault and/or domestic violence. Bethell concedes that the 

consolidation of the charges met the statutory requirement for joinder 

because they were all of the same class. Nonetheless, he contends the trial 

court abused its discretion and violated his constitutional right to a fair trial 

by consolidating the three cases. We conclude Bethell’s contention lacks 

merit.

1. Additional Facts

As discussed above, after dismissing two complaints under case number 

FSB19002126, the People refiled on December 2, 2019 under case number 

FSB 19004093. The information charged Bethell with a single count of 

forcible oral copulation (§ 287, subd. (c)(2)(A)). The victim was S.M.

On December 13, 2019, the People filed another complaint against 

Bethell under case number FSB19004237. The information charged Bethell 

with sexual penetration of an unconscious person (§ 289, subd. (d); count 1)

and sexual penetration by anesthesia or controlled substance (§ 289, 

subd. (e); count 2). The victim was B.W. 

On December 24, 2019, the People filed a third complaint against 

Bethell under case number FSB19004365. The information charged Bethell 

with forcible oral copulation (§ 287, subd. (c)(2)(A); count 1), and two counts of 

injuring a spouse or cohabitant (§ 273.5, subd. (a); counts 2 & 3). The victim 

was S.M. 

The People moved to consolidate arguing that the offenses in the three 

cases were of the same class of crimes because they have characteristics or 

attributes in common. The charges and evidence in each of the cases 
18

centered around Bethell’s nonconsensual sexual abuse and physical assault of 

an intimate partner. And while one case involved a different victim, the 

cases were nevertheless connected in that both victims alleged the crimes 

occurred in the same residence and described Bethell becoming sexually 

volatile when angry. The People also argued that Bethell would not be 

prejudiced by the consolidation of the cases because the evidence in the cases 

would be cross-admissible in separate trials under Evidence Code 

section 1108, which permits admission of other acts of sexual assault and 

Evidence Code section 1109, which permits other acts of domestic violence. 

Finally, the evidence in each case would not be unduly inflammatory if 

presented in the other cases and the strength of the cases were hardly 

distinguishable. 

In opposition, the defense argued that both victims lacked credibility 

and urged that the prosecution sought to consolidate weak unrelated charges 

to improve the odds of conviction. 

The court held a bench conference off the record and then stated on the 

record that the cases were consolidated. 

2. Applicable Law

“ ‘The law favors the joinder of counts because such a course of action 

promotes efficiency.’ ” (People v. Scott (2015) 61 Cal.4th 363, 395 (Scott).) 

Section 954 states: “An accusatory pleading may charge . . . two or more 

different offenses of the same class of crimes or offenses, under separate 

counts, and if two or more accusatory pleadings are filed in such cases in the 

same court, the court may order them to be consolidated. . . . provided, that 

the court in which a case is triable, in the interests of justice and for good 

cause shown, may in its discretion order that the different offenses or counts 

set forth in the accusatory pleading be tried separately.” (§ 954.) Where 
19

defendants are charged with having committed “ ‘common crimes involving 

common events and victims,’ . . . the court is presented with a ‘ “classic case” ’ 

for a joint trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) 

Where, as here, “ ‘the statutory requirements for joinder are met, a 

defendant must make a clear showing of prejudice to establish that the trial 

court abused its discretion in denying the defendant’s severance motion.’ 

[Citation.] ‘In determining whether a trial court’s refusal to sever charges 

amounts to an abuse of discretion, we consider four factors: (1) whether 

evidence of the crimes to be jointly tried is cross-admissible; (2) whether some 

charges are unusually likely to inflame the jury against the defendant; 

(3) whether a weak case has been joined with a stronger case so that the 

spillover effect of aggregate evidence might alter the outcome of some or all of 

the charges; and (4) whether any charge carries the death penalty or the 

joinder of charges converts the matter into a capital case.’ ” (People v. 

Anderson (2018) 5 Cal.5th 372, 388–389.)

3. Analysis

As we have noted, Bethell concedes joinder was proper under 

section 954. But he asserts the joinder violated his due process right to a fair 

trial because some of the evidence was not cross-admissible, the evidence 

together painted him as a horrible person and was likely to inflame the jury, 

and it joined a strong case with two weak cases. We are not persuaded. 

Rather, we conclude Bethell has failed to demonstrate a clear showing of 

potential prejudice, and thus has not established that the trial court abused 

its discretion in allowing the charges to be tried together. 

First, the cross-admissibility of the evidence is sufficient to negate 

prejudice without any further showing. (Scott, supra, 61 Cal.4th at p. 396.) 

Bethell concedes that the evidence in the two cases involving charges of 
20

sexual assault and domestic violence of S.M. would have been crossadmissible but contends evidence in the case involving charges of sexual 

assault of B.W. would not have been. However, Evidence Code section 1108, 

which allows evidence of other acts of sexual assault to be admitted as 

propensity evidence, would have provided grounds for cross-admissibility 

between the cases involving S.M. and the case involving B.W. Even 

assuming evidence of the incidents were not cross-admissible, the absence of 

this factor is not dispositive. (People v. Soper (2009) 45 Cal.4th 759, 775.) 

Section 954.1 explicitly states “evidence concerning one offense or offenses 

need not be admissible as to the other offense or offenses before the jointly 

charged offenses may be tried together before the same trier of fact.” (Italics 

added.) In the hypothetical “absence of cross-admissibility, we turn to the 

remaining factors to assess whether the trial court abused its discretion.” 

(People v. Simon (2016) 1 Cal.5th 98, 123–124 (Simon).)

Second, Bethell claims that the evidence together painted him as a 

horrible person. However, the “the issue is ‘whether “ ‘strong evidence of a 

lesser but inflammatory crime might be used to bolster a weak prosecution 

case’ on another crime.” ’ ” (Simon, supra, 1 Cal.5th at p. 124.) Bethell does 

not identify any evidence that addresses this inquiry. The factual 

circumstances for each instance of sexual assault and domestic violence may 

have been “different in their particulars,” but were “equally abhorrent.” 

(People v. Price (1991) 1 Cal.4th 324, 390.)

Third, Bethell argues that the most straightforward charge was forcible 

oral copulation that occurred on June 10, 2019, because S.M. spoke with law 

enforcement the next day. He contends that the jury finding him not guilty of 

this charge “is at least a possible testament to the problems of overcharging 

by the prosecution and overwhelming the jury.” He also asserts the evidence 
21

against him was “unfairly bolstered by the extensive amount of spillover 

evidence.” As an initial matter, we disagree that the June 10, 2019 incident 

was necessarily the most straightforward case. For example, there was no 

corroborating witnesses to this charge where by contrast the jury heard from

W.M., who witnessed Bethell’s domestic violence of S.M. and as well as J.B., 

who saw pictures of Bethell sexually assaulting B.W. It is “always . . . 

possible to point to individual aspects of one case and argue that one is 

stronger than the other. A mere imbalance in the evidence, however, will not 

indicate a risk of prejudicial ‘spillover effect,’ militating against the benefits 

of joinder and warranting severance of properly joined charges.” (Soper, 

supra, 45 Cal.4th at p. 781.) Moreover, severance is not required “because 

properly joined charges might make it more difficult for a defendant to avoid 

conviction compared with his or her chances were the charges to be 

separately tried.” (Ibid.) To demonstrate the potential for a prejudicial spillover effect, a defendant must show an “extreme disparity” in the strength or 

inflammatory character of the evidence. (Belton v. Superior Court (1993) 

19 Cal.App.4th 1279, 1284.) Bethell has not shown that here.

Finally, none of the counts against Bethell were a capital charge nor 

did the joinder of charges convert the matter into a capital case.

In reviewing the four factors to be considered, we conclude Bethell has 

failed to establish a “ ‘clear showing’ of potential prejudice,” and therefore 

cannot show the trial court abused its discretion in consolidating the cases. 

(Simon, supra, 1 Cal.5th at p. 123.)

Even if, as we have concluded, joinder was proper and there was no 

sufficient showing of prejudice at the time the trial court ruled, “we must also 

determine ‘whether events after the [trial] court’s ruling demonstrate that 

joinder actually resulted in “gross unfairness” amounting to a denial of [a] 
22

defendant’s constitutional right to fair trial or due process of law.’ ” 

(Simon, supra, 1 Cal.5th at p. 129.) “[A] judgment will be reversed on this 

ground only if it is reasonably probable that the jury was influenced by the 

joinder in its verdict of guilt.” (Id. at pp. 129−130.) “Appellate courts have 

found ‘ “no prejudicial effect from joinder when the evidence of each crime is 

simple and distinct, even though such evidence might not have been 

admissible in separate trials.” ’ ” (Soper, supra, 45 Cal.4th at p. 784.)

Here, the charges that the jury convicted on were each supported by 

“relatively balanced” and sufficiently “strong” evidence. (See People v. Ybarra 

(2016) 245 Cal.App.4th 1420, 1437 [no prejudice where “the strength of the 

evidence as to each incident was relatively balanced”].) Namely, as we 

discussed, the jury heard corroborating evidence from third party witnesses. 

Moreover, the court instructed the jury that each of the counts was a 

separate crime that must be separately decided. (CALCRIM No. 3515.) 

Bethell has pointed to nothing in the record that indicates the jury failed to 

follow this instruction. (People v. Merriman (2014) 60 Cal.4th 1, 48–49 

[absent contrary showing, jury presumed to follow instructions to consider 

each count separately].) We conclude it was not “reasonably probable” that 

the jury was improperly “influenced by the joinder” and that the joinder 

therefore did not violate Bethell’s due process rights. (See Simon, supra, 1 

Cal.5th at pp. 129–130.)

III. The Trial Court Did Not Abuse Its Discretion by Admitting Propensity 

Evidence Pursuant to Evidence Code Sections 1108 and 1109

Bethell asserts his right to due process was violated by the admission of 

evidence of other acts of sexual assault and domestic violence as propensity 
23

evidence under Evidence Code sections 1108 and 1109, respectively.5 He 

primarily argues that Evidence Code section 352 is not an adequate 

safeguard against the unfairness of propensity evidence and urges us to 

reexamine contrary case law. We decline to do so and conclude that the trial 

court did not abuse its discretion in weighing the probative value of the 

evidence against the risk of undue prejudice. 

1. Additional Facts

The People filed motions in limine to admit evidence of uncharged acts

of sexual assault under Evidence Code section 1108 and domestic violence

under Evidence Code section 1109. 

First, the People sought to introduce evidence that in 2015, B.W. awoke 

to Bethell on top of her and with her pants and underwear removed, which 

resulted in a physical altercation. She reported this incident to the police and 

was not sure if Bethell had performed sexual acts on her without her 

knowledge. The People argued that this evidence was admissible to support 

B.W.’s credibility, and to show Bethell’s propensity to disregard consent of 

intimate partners because similar to the current charge involving Bethell 

sexually assaulting B.W. in her sleep, this was a prior incident that she 

5 Bethell also contends the trial court erred in admitting this evidence as 

modus operandi under Evidence Code section 1101, subdivision (b). However, 

his entire argument addresses propensity evidence under Evidence Code 

sections 1108 and 1109. He does not discuss authority regarding modus 

operandi evidence under Evidence Code section 1101 or analyze the propriety 

of the evidence under that section. We are not required to address arguments 

that the appellant has not supported with pertinent legal authority and 

analysis. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981–982; 

see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 

Cal.App.4th 1, 10 [“an appellant is required to not only cite to valid legal 

authority, but also explain how it applies in his case”]; California Rules of 

Court, rule 8.204(a)(1)(B) [each point must be supported by argument].) We 

therefore limit our review to Evidence Code sections 1108 and 1109. 
24

reported to police of her not realizing that he was assaulting her in her sleep. 

The court concluded this evidence was admissible under Evidence Code 

section 1108.

Second, the People sought to introduce evidence that in June 2017, 

Bethell pushed B.W. against a wall causing her to hit her head against a 

hook, pushed her to the floor, and covered her mouth and nostrils in an 

attempt to suffocate her. B.W.’s sister, M.R., heard arguing and screaming 

and saw Bethell covering B.W.’s mouth and nostrils with his hand, and called 

the police. The prosecutor argued this was evidence of another reported 

incident of domestic violence and the court concluded it was admissible under 

Evidence Code section 1109. 

Third, the People sought to introduce evidence of unreported physical 

abuse that B.W. suffered, including Bethell causing 20 black eyes and pulling 

her across the floor by her hair 15 to 20 times. The People argued this was 

evidence of unreported domestic violence and the court concluded it was 

admissible under Evidence Code section 1109. 

Fourth, the People sought to admit evidence that Bethell would hit 

B.W. when she refused to have sex with him or use a sex toy on him. She 

estimated five incidents in which Bethell kicked her out of the mobile home 

because she refused to assist him with the use of a sex toy and each time she 

tried to reenter the home through a dog door, Bethell kicked her in the head. 

The People argued this evidence was admissible to show Bethell’s propensity 

to use violence and duress to gain compliance for his sexual cravings, 

consistent with the charges of forceable oral copulation involving S.M. The 

court concluded this evidence was admissible under Evidence Code

section 1108. 
25

Fifth, the People sought to admit evidence that B.W.’s mother, T.D.,

observed Bethell being verbally controlling of B.W. and hitting her. The 

People argued this was evidence of Bethell’s propensity to engage in domestic 

violence, consistent with S.M.’s allegations. The court concluded this 

evidence was admissible under Evidence Code section 1109. 

Sixth, the People sought to admit evidence that Bethell’s former 

roommate, M.G., was beaten by him approximately 10 times. He punched 

and slapped her face, pushed her, and threw things at her. The People 

argued this was evidence of Bethell’s propensity to engage in domestic 

violence consistent with the allegations regarding S.M. The court concluded 

this evidence was admissible under Evidence Code section 1109. 

Finally, the People sought to admit evidence that M.G. woke up to 

Bethell sexually penetrating her. She began to believe Bethell was drugging 

her in order to molest her because she was unable to recall what happened 

the night before. Bethell admitted to “slipping” her a Xanax from a 

prescription bottle with B.W.’s name on it to help her relax. He would also 

get angry and violent if M.G. did not want to participate in sexual acts that 

made her uncomfortable. The People argued this evidence showed that 

Bethell had a propensity to commit sexual acts on others without their 

consent, consistent with the allegations that Bethell forced S.M. to orally 

copulate him, and consistent with the allegations that Bethell sexually 

penetrated B.W. while she was unconscious. The court concluded this 

evidence was admissible under Evidence Code section 1108. 

For each of the uncharged acts of sexual assault or domestic violence, 

the court found that the probative value of the evidence outweighed any 

prejudice. 
26

In accordance with the People’s offer of proof, B.W. testified that in 

2015, she woke up with Bethell on top of her with her pants and underwear 

taken off, which led to Bethell physically assaulting her. B.W. testified that 

most fights began over sex and Bethell’s sexual demands. He also forced her 

to orally copulate him and participate in sexual activity with the use of a sex 

toy against her will. She also testified that Bethell would hit, punch, slap,

and kick her, pull her hair, and put her in a choke hold. During the course of 

Bethell’s abuse, B.W. suffered black eyes, fat lips, bloody noses, bumps, and

scars. Sometimes, Bethell would lock B.W. outside in the cold forcing her to 

crawl through a dog door to get back inside. 

B.W.’s sister, M.R., testified that in June 2017, she heard yelling and 

screaming, then saw Bethell choking B.W. in the hallway. 

B.W.’s mother, T.D., testified that she observed Bethell beating B.W. 

and throwing a urine-soaked sock at her. Once, when T.D. arrived at the 

mobile home, B.W. “ran out of the house and had blood coming from her nose 

and mouth and scratches and cuts on her.” 

M.G. testified that initially, she and Bethell were just roommates, 

however, Bethell eventually moved her furniture and belongings into his

room and they commenced a sexual relationship. At some point, she became 

disinterested and told Bethell that she was no longer willing to engage in sex 

with him. She began to suspect that Bethell was sexually molesting her in 

her sleep because she sometimes woke up feeling lethargic and would have 

odd abdominal pain, with no memory of the night before. Once, she woke up 

in a sexual position with Bethell’s hand inside her vagina. Prior to this 

incident, M.G. had found a bottle of Xanax in the mobile home with B.W.’s 

name on it, and when she confronted Bethell about it, he “blurted out” that 

he would not have to drug her “if [she] wasn’t such a prude.” 
27

M.G. testified that Bethell would also push her around and slap her. 

He would push her to the ground, punch and choke her, and threatened to 

kill her with a gun. Much of the time, his anger stemmed from her being 

unwilling to engage in “weird” sexual acts that he tried to “lure” her into 

performing. 

Following the evidence, the trial court instructed the jury as to its 

limited use of the evidence pursuant to Evidence Code section 1108 and 1109. 

2. Applicable Law

Evidence of a person’s character or predisposition to act in a certain 

way is generally inadmissible to prove conduct in conformance with that 

character trait on a given occasion. (§ 1101, subd. (a); People v. Villatoro

(2012) 54 Cal.4th 1152, 1159.) 

However, Evidence Code section 1108 creates an exception to this 

general rule, providing that “[i]n a criminal action in which the defendant is 

accused of a sexual offense, evidence of the defendant’s commission of another 

sexual offense is not made inadmissible by [Evidence Code] Section 1101, if 

the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” 

(Evid. Code, § 1108, subd. (a).)

Evidence Code section 1109 creates another exception, providing that

“in a criminal action in which the defendant is accused of an offense involving 

domestic violence, evidence of the defendant’s commission of other domestic 

violence is not made inadmissible by [Evidence Code] Section 1101 if the 

evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. 

Code, § 1109, subd. (a)(1).)

By Evidence Code section 1108’s and 1109’s incorporation of Evidence

Code section 352, evidence of a prior sexual offense or domestic violence is 

admissible unless “its probative value is substantially outweighed by the 
28

probability that its admission will . . . create substantial danger of undue 

prejudice . . . .” (Evid. Code, § 352.) “ ‘The principal factor affecting the 

probative value of an uncharged act is its similarity to the charged offense. 

Other factors affecting the probative value include the extent to which the 

source of the evidence is independent of the charged offense, and the amount 

of time between the uncharged acts and the charged offense. The factors 

affecting the prejudicial effect of uncharged acts include whether the 

uncharged acts resulted in criminal convictions and whether the evidence of 

uncharged acts is stronger or more inflammatory than the evidence of the 

charged offenses.’ ” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) 

The “prejudice” contemplated in Evidence Code section 352 refers to 

evidence that “uniquely tends to evoke an emotional bias against the 

defendant as an individual and which has very little effect on the issues.” 

(People v. Karis (1988) 46 Cal.3d 612, 638.) “In other words, evidence should 

be excluded as unduly prejudicial when it is of such nature as to inflame the 

emotions of the jury, motivating them to use the information, not to logically 

evaluate the point upon which it is relevant, but to reward or punish one side 

because of the jurors’ emotional reaction.” (People v. Doolin (2009) 45 Cal.4th 

390, 439.) Such evidence is unduly prejudicial because of the substantial 

likelihood the jury will use it for an improper purpose. (Ibid.) 

We review a challenge to a trial court’s decision to admit evidence for 

abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) 

“A trial court’s exercise of its discretion under [Evidence Code] section 352 

‘ “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 manifest miscarriage of justice.” ’ ” (People v. Brown (2000) 

77 Cal.App.4th 1324, 1337.) “[A] trial court does not abuse its discretion 
29

unless its decision is so irrational or arbitrary that no reasonable person 

could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)

3. Analysis

Bethell first challenges the constitutionality of Evidence Code 

sections 1108 and 1109, arguing that Evidence Code section 352 is not an 

adequate safeguard against the unfairness of propensity evidence. However, 

the California Supreme Court has already rejected a due process challenge to 

the use of propensity evidence under Evidence Code section 1108 and 

concluded that Evidence Code section 352 provides substantial protections of 

a defendant’s constitutional rights. (People v. Falsetta (1999) 21 Cal.4th, 903,

915–917 (Falsetta).) Following binding precedent, as we are required to do

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), this 

court has already rejected due process challenges to Evidence Code 

sections 1108 and 1109, and we do so again. (See People v. Cabrera (2007) 

152 Cal.App.4th 695, 704; People v. Manning (2008) 165 Cal.App.4th 870, 

877.)

Bethell argues that even if Evidence Code sections 1108 and 1109 are 

constitutional, the trial court still erred in admitting the propensity evidence. 

His briefing conclusively asserts that under the circumstances of this case, 

the prejudicial impact of the propensity evidence far outweighed any 

probative value.

Bethell does not analyze or attack the probative value of the evidence. 

Nonetheless, we conclude evidence of his uncharged sexual assaults of B.W. 

and M.G. were sufficiently similar to the charged offenses that he forced S.M. 

to orally copulate him and that he sexually penetrated B.W while she was 

asleep or unconscious. Evidence of both the charged and uncharged acts 

involved Bethell getting angry and acting violently when women would not 
30

comply with his sexual demands as well as performing sexual acts on women 

without their knowledge either while they were asleep, unconscious, or 

drugged. 

Likewise, Bethell’s uncharged acts of domestic violence of B.W. and 

M.G. were sufficiently similar to the charged offenses that he physically 

abused S.M. The charged and uncharged incidents involved Bethell pushing, 

hitting, pulling hair, and suffocating or choking the women. Additionally, the 

relationships and circumstances were similar in that each of the women lived 

with Bethell and to some extent had a romantic or consensual sexual 

relationship with him.

Regarding the prejudicial impact of the evidence, Bethell merely 

contends “[t]here is little in our society that evokes a more emotional 

response and bias than the subject matter in this case.” However, the 

evidence of his uncharged acts of sexual assault and domestic violence were

no more inflammatory than the charged offenses. 

In sum, Bethell has not met his burden on appeal of showing the court 

abused its discretion in determining that the probative value of the evidence 

regarding his uncharged acts of sexual assault and domestic violence was not 

substantially outweighed by the risk of undue prejudice. Because we 

conclude there was no error, we need not and do not reach Bethell’s claim of 

prejudice from the asserted error. (See People v. Watson (1956) 46 Cal.2d 

818, 836 (Watson).)6

6 Bethell also argues the admission of the evidence was prejudicial under 

Chapman v. California (1967) 386 U.S. 18 and appears to assert that this

standard applies because the error violated his right to due process. Based 

on our rejection of Bethell’s due process claim, we disagree that this standard 

would have applied.
31

IV. The Trial Court Did Not Commit Instructional Error

Bethell argues the jury instructions regarding the limited use of 

propensity evidence and particularly the applicable burdens of proof were 

confusing. He also contends the instructions were argumentative and 

improperly allowed the complaining witnesses to corroborate their own 

accusations. We disagree.

1. Applicable Law

“A claim of instructional error is reviewed de novo. [Citation.] An 

appellate court reviews the wording of a jury instruction de novo and assesses 

whether the instruction accurately states the law. [Citation.] In reviewing a 

claim of instructional error, the court must consider whether there is a 

reasonable likelihood that the trial court’s instructions caused the jury to 

misapply the law in violation of the Constitution. [Citations.] The 

challenged instruction is viewed ‘in the context of the instructions as a whole 

and the trial record to determine whether there is a reasonable likelihood the 

jury applied the instruction in an impermissible manner.’ ” (People v. 

Mitchell (2019) 7 Cal.5th 561, 579.)

Instructional error requires reversal of the judgment only if it resulted 

in a miscarriage of justice—which, in this context, means that there is a 

reasonable probability that the defendant would have achieved a more 

favorable result in the absence of the error. (Cal. Const., art. VI, § 13;

Watson, supra, 46 Cal.2d at p. 836; see People v. Moore (2011) 51 Cal.4th 

1104, 1130–1133 [applying Watson harmless error analysis to claim of 

instructional error regarding permissive inferences]; Falsetta, supra,

21 Cal.4th at pp. 924–925 [applying Watson standard to alleged error in 

failing to instruct jury on proper use of propensity evidence].) 
32

2. Analysis

The court gave CALCRIM No. 852A regarding the use of evidence of 

uncharged domestic violence for propensity purposes, and CALCRIM 

No. 852B regarding the use of evidence of charged domestic violence for 

propensity purposes. Similarly, the court gave CALCRIM No. 1191A 

regarding the use of evidence of uncharged sexual assault for propensity 

purposes, and CALCRIM No. 1191B regarding the use of evidence of charged 

sexual assault for propensity purposes. Bethell claims that giving separate 

instructions for uncharged and charged offenses was confusing and 

unreconcilable. His argument is limited to the burdens of proof applicable to 

using uncharged offenses versus charged offenses for purposes of propensity 

evidence. 

That is, in accordance with CALCRIM No. 852A and CALCRIM 

No. 1191A, the court instructed the jury that the uncharged offenses must be 

proven by a preponderance of the evidence before the jury could conclude 

from that evidence that Bethell was disposed or inclined to commit domestic 

violence or sexual offenses. On the other hand, in accordance with CALCRIM 

No. 852B and CALCRIM No. 1191B, the court instructed the jury that the 

charged offenses must be proven beyond a reasonable doubt before the jury 

could conclude from that evidence that Bethell was disposed or inclined to 

commit domestic violence or sexual offenses. 

Bethell does not contend that the instructions applied incorrect

burdens of proof, or that the “A” instructions regarding the use of uncharged 

offenses were incorrect, or that the “B” instructions regarding the use of 

charged offenses were incorrect. Instead, he argues the use of the “A” 

instructions and the “B” instructions together were contradictory and 

confusing. Specifically, he claims it raises the question “as to how the jury 
33

should consider evidence of charged offenses that it does not find to be true 

beyond a reasonable doubt” and speculates, without any reference to the 

record, that the jury would have been “more likely” to apply the lower 

preponderance of the evidence standard of proof in using such evidence for 

propensity purposes. We disagree. The instructions clearly told the jury that 

the charged offenses must be proven beyond a reasonable doubt in order for 

the jury to draw an inference of propensity from that evidence. There is no 

reason to believe the jury strayed from this instruction and applied an 

impermissibly lower standard of proof. To the contrary, we are required to 

presume the jury understood and followed the instructions they were given. 

(See People v. Martinez (2010) 47 Cal.4th 911, 957.) 

Bethell’s claim that the instructions were argumentative relies on his 

position that the prosecutor’s case relied heavily on evidence of sexual assault 

and domestic violence that “had no relevance to the charged offenses.” As we 

have already discussed, the uncharged acts of sexual assault and domestic 

violence were relevant as propensity evidence under Evidence Code 

sections 1108 and 1109. Contrary to Bethell’s claim, the jury instructions did 

not “thr[o]w the court’s weight behind the prosecutor’s case,” but rather 

instructed the jury as to the proper use of the propensity evidence. Again, 

Bethell does not contend the instructions were incorrect.

Bethell’s argument that the jury instructions allowed the complaining 

witnesses B.W. and S.M. to corroborate their own accusations is another 

attack on the admissibility of the propensity evidence itself, rather than the 

jury instructions. However, he relies on cases that predate Evidence Code 

sections 1108 and 1109, namely People v. Stanley (1967) 67 Cal.2d 812 and 

People v. Smittcamp (1945) 70 Cal.App.2d 741. Additionally, this case is 

distinguishable from People v. Gonzales (2017) 16 Cal.App.5th 494
34

(Gonzales), which Bethell relies on to assert that there is an issue when 

propensity evidence consists solely of the victim’s own testimony. Here, 

B.W.’s testimony was admitted as propensity evidence regarding charges 

involving S.M., and M.G., who was not a complaining victim, provided

testimony that was admitted as propensity evidence regarding the charges 

involving S.M. and B.W. Thus, the propensity evidence did not consist solely 

of the victims’ own testimony regarding Bethell’s uncharged acts of sexual 

assault or domestic violence toward them. Regardless, Gonzales noted that 

nothing in Evidence Code section 1108 limits its effect to the testimony of 

third parties and instead allows the admission of uncharged sexual offenses 

from any witness, subject to Evidence Code section 352. (Gonzalez, at p. 502.)

Bethell argues the deficiencies in the instructions were so significant 

that they lowered the burden of proof, resulting in a prejudicial violation of 

due process. We disagree and conclude that if there was error in the jury 

instructions regarding propensity evidence, it was harmless by any standard. 

While Bethell provides no prejudice analysis, we note that the jury found 

Bethell not guilty of the forcible oral copulation charge in count 1 and did not 

reach a verdict on the forcible oral copulation charge in count 2. This shows 

that the jury carefully deliberated, and understood and applied the applicable 

burdens of proof. And as we have already discussed, there was corroborating 

evidence (unrelated to propensity evidence) of the charges that the jury 

convicted on—W.M. testified that he witnessed Bethell’s domestic violence of 

S.M., and J.B. testified that he saw photographs of Bethell sexually 

assaulting B.W.
35

DISPOSITION

The judgment is affirmed.

CASTILLO, J.

WE CONCUR:

BUCHANAN, Acting P. J.

KELETY, J.