____________________

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

is certified for publication with the exception of part IIA.

1

Filed 9/11/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MILAD SHENOUDA,

Defendant and Appellant.

E061954

(Super.Ct.No. FVI1201671)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, 

Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Annie 

Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted defendant and appellant, Milad Anis Shenouda, of committing a 

lewd act upon Brianna W., a 13-year-old girl.

1

(Pen. Code, § 288, subd. (a), count 3.)

2

The jury acquitted defendant of the charge that he committed felony child molestation 

against Brianna. (§ 647.6, subd. (b), count 5.) The jury also acquitted defendant of 

charges that he committed sexual battery (§ 243.4, subd. (e)(1), count 4) and sexual 

battery by restraint (§ 243.4, subd. (a), count 1) against Teri W., Brianna’s mother, and 

acquitted him of the charge of first degree burglary (§§ 459, 460, subd. (a), count 2). The 

trial court denied probation and sentenced defendant to the statutory middle term of six 

years in state prison.

Defendant appeals his conviction on the ground that the prosecution failed to 

present substantial evidence that he touched the victim “with the specific intent of 

obtaining sexual arousal or gratification.” Defendant also appeals the trial court’s 

decisions to deny probation and sentence defendant to the middle term of six years in 

prison on the ground the court improperly relied on findings that defendant lacked 

remorse and had committed sexual offenses against Teri and other women who testified 

at trial under Evidence Code section 1108.

For the reasons explained post, we affirm the judgment and the sentence.

 

1 To maintain privacy, we follow the trial court’s convention of using first 

names or first names and first initials of surnames to refer to the people who accused 

defendant of committing sexual offenses as well as to members of their families.

2 All further unlabeled statutory references are to the Penal Code.
3

I

FACTUAL BACKGROUND

Teri and her family have lived in the same house in Apple Valley since 1993. In 

June 2012, when the events that sparked this case occurred, she lived in the house with 

her husband, Robert, and their teenage daughters, Amanda, Danielle, and Brianna. 

Brianna was born in 1998 and was 13 years old at the time.

Defendant worked as a letter carrier in Apple Valley, delivering mail for the 

United States Post Office. By 2012 he had worked for the post office for 28 years. 

Defendant testified that he began the route that included the home of Teri and her family 

in early 1998, the year Teri was pregnant with Brianna. The mailbox for Teri’s house is 

located about a half mile away, in a centralized bank of approximately 200 mailboxes. 

Defendant’s usual practice was to deliver mail to the centralized mailboxes, but to go to 

individual homes when he had a package that would not fit in the mailbox or in one of the 

limited number of package lockers. Teri testified, however, that defendant often

delivered regular mail directly to her house.

Everyone agreed that, for many years, defendant had a friendly relationship with 

Teri and her family. Teri and her family knew defendant by his nickname, Rocky. Teri 

testified that defendant would deliver mail to her house and they would exchange “a, hey, 

how are you doing, friendly hi.” Candace Fry, who described herself as Teri’s neighbor 

and “pretty much a best friend of hers for close to 20 years” and who also served as

Brianna’s nanny, testified that defendant and Teri were “[v]ery friendly; they get along 
4

really good.” She testified that “[w]e’d be at her mailboxes, and she’d sit there and talk 

to him forever. Her daughters would hug him; just real friendly, real happy.” She had 

seen all three of Teri’s daughters initiate hugs with defendant, but never saw defendant

initiate contact with the girls. According to Fry, “Brianna really liked Rocky.” Fry said 

if Brianna was at the mailboxes when Rocky was there, “she’d run and say hi and hug 

him.” Defendant testified that Brianna was a “child that I’ve known over the years since 

before she was born. So she was like a child of mine.” Teri’s husband, Robert, “would 

be there a lot of times at the house. We stand and talk if I have a package to them to 

deliver.” On one occasion, Robert sold him a car tire for use on his motorcycle and asked

defendant to “bring it by so I can see it.” When defendant brought the motorcycle by 

their house, Robert, Teri, and Brianna inspected the bike and defendant took Brianna for 

a ride around the neighborhood. According to Brianna, her father suggested she take a 

ride and she agreed. On another occasion, Teri showed defendant the remodeling work in 

her master bathroom. On a third occasion, she showed him kittens she was housing in 

her bedroom closet and he adopted two of them. On a fourth occasion, she showed him 

the inside of the family’s recreational vehicle. Amanda testified that on another occasion 

Teri showed him the waterbed in her bedroom, though Teri denied this occurred.

According to Teri, their relationship changed in 2008, when defendant began 

coming into her house uninvited to deliver the mail. At first, he would drop the mail off 

“in the chair on the porch, knock on the door and . . . then it just progressed from that, 

and he would just walk in my house unannounced.” Around the same time, defendant
5

started “making advances towards me saying things, just little comments here and there.

And then it progressed from there.” The first time Teri remembers defendant touching 

her in a sexual manner occurred at the centralized mailboxes where she often waited for 

Brianna to return after school. Teri recounted that she was sitting in “my car, and he 

reached in my car and grabbed me” she testified, gesturing to her left breast. Another 

time at the same location, defendant “stuck his head in my window and kissed me.” Teri 

testified that she did not want to make a big deal about these unwanted attentions because 

she “didn’t want him to lose his job.” Between these events and June 2012, Teri testified 

that defendant touched and kissed her “[t]oo many [times] to count” and estimated their 

frequency at “once or twice a week.” He touched her inappropriately at the central 

mailboxes a “couple other times,” and also began touching and kissing her without her 

consent when he came in her house to deliver her mail. On one such occasion, defendant

came in her front door, tried to hug her, touched her breast, and “put his hand down the 

back of my pants.” Teri told him to stop and he backed away. Teri testified that these 

unwanted attentions made her feel like she “wanted to crawl underneath a rock,” but she 

“just didn’t know what to do.” She asked defendant to stop “[m]any, many times” 

without success.

Things finally reached a head in June 2012. On June 7, defendant “[w]alked in 

[her] front door” uninvited, though Teri had asked him not to do that anymore. 

Defendant put the mail on the kitchen table and then “asked [Teri] if [she] wanted to 

play.” Teri said no, but defendant “pulled my hand. I was standing in front of him, and 
6

he pulled my hand backwards onto his front of his pants” and forced her to touch his 

crotch. Teri pulled away and “told him [she] was getting ready to go to a doctor’s 

appointment.” She tried “to get him to leave, and he wouldn’t.” Instead “[h]e sat on my

chair, my kitchen table, and he grabbed me as I walked by him. . . . And he pulled me 

towards him and held me tight and wouldn’t let go.” Defendant held Teri pressed against 

him face to face with her stomach pressed against his crotch. She could feel he was 

sexually aroused. While he was holding her, defendant reached a hand down her shirt to 

grab her breasts, tried to kiss her on the mouth, and “tried to get his hands down the front 

of [her] pants” and “the back of [her] pants.” Teri testified that defendant held her for 

“[t]hree to five minutes” before she “wiggled away from him, and . . . kneed him and told 

him to leave me alone.” When she was free, Teri “told him I’ll make you a deal. If you 

leave me alone from now on, I won’t tell your wife or the post office.”

A couple weeks went by without incident. Then, on June 19, defendant returned 

to Teri’s house. According to Teri, “[h]e walked through my front door again, and I

looked up, and there he was. . . . He comes up to the left of me and stands on the edge, 

and he goes, what are you standing all the way over there for? I said, because I need to 

be. And then he leans over, and he kisses me right on the mouth, and I’m just like, that’s 

it. I’m done. He’s not going to take no for an answer.” Teri told defendant to leave and 

went to the Apple Valley Post Office to file a complaint the same day.

Two days later, Teri went to the Apple Valley Police Department to report the 

incident. The police told her they would dispatch a deputy from the San Bernardino 
7

County Sheriff’s Department. That evening, a sheriff’s deputy came to Teri’s home and 

she gave a statement about defendant’s conduct. Brianna was in the house at the time,

and Teri believes Brianna could hear the interview. After taking Teri’s statement, the 

deputy asked to interview Brianna. The deputy said he “believe[d] that [Teri and 

Brianna] were surprised when [he] took Brianna aside and interviewed her.” Brianna 

seemed “shy and reluctant to talk to” the deputy, but she described the incidents that had 

occurred between her mother and defendant on June 7 and June 19 and said her mother 

“sounded scared.” However, when she testified in court Brianna admitted she did not see 

or hear any of these incidents, except that she heard her mother tell defendant to “leave” 

in a loud, scared voice during the incident on June 7.

Brianna also accused defendant of touching her inappropriately when she was 13

years old. She told the deputy that “during a hug” defendant “had in the past grabbed her 

buttocks.” She said defendant touched her like that “sometimes” and “she believed it was 

intentional” and that “it made her feel uncomfortable.” Brianna gave live conditional 

testimony before defendant, the court, and the parties’ attorneys, and the prosecution 

played excerpts from a video recording of that testimony for the jury.

3

 Brianna testified 

that on one occasion defendant came into her house and “hugged me and he grabbed me.” 

 

3 The court permitted Brianna to give conditional testimony outside the 

presence of the jury because she has a medical condition that puts her at risk of infection 

if exposed to large groups of people. The prosecution made a video recording of her 

testimony and the court allowed the prosecution to play excerpts for the jury in lieu of 

having her testify live. Defendant agreed to the procedure.
8

She said he used his hand to “touch[] my butt,” described him as “grabb[ing] it” and 

agreed, when asked, that he “squeez[ed] it.” She testified he had grabbed her “on 

purpose” and that it made her feel “[v]ery uncomfortable.” She testified at the hearing 

that defendant had hugged her “quite a few times,” but was very clear that he touched her 

buttocks and squeezed her only one time. She was unable to say when the inappropriate 

touching occurred.

Defendant gave a much different version of all these events. He admitted he and 

Brianna hugged each other. However, he testified that he never “touched Brianna 

inappropriately or against her will.” He testified that there was never “a time that [he 

was] aware that Brianna was uncomfortable being around [him]” and there was never “a 

time that [he] had physical contact with her that [he was] able to perceive she was 

uncomfortable.” Defendant denied that he ever “squeezed her buttocks” and said Brianna 

was not telling the truth when she said that he had.

Defendant admitted to touching Teri in a sexual manner, but contended the 

touching was consensual. According to defendant, Teri’s back surgery, which for a time 

caused her to use a walker, sparked a limited sexual relationship. On a couple of 

occasions when defendant had delivered mail to her house, Teri showed him a scar from 

the surgery on her lower back and invited him to touch it. Revealing the scar required 

Teri to “lift[] . . . with one arm the shirt” about three or four inches above the waistline 

and “with the other arm pull[] down her pants or shorts” below “the top of the buttocks.” 

Eventually, defendant began giving Teri back massages which became increasingly 
9

sexual. According to defendant, she invited and responded to the contact. He said during 

some massages, Teri “would literally back into between my legs and rub her behind on 

my crotch area” using “[a] rhythmic kind of motion.” He testified that he gave her 

intimate massages at least a couple dozen times between 2009 and 2012. He testified he 

never held her in a way that stopped her from breaking off the contact, she never recoiled 

or resisted, and “there was never a time that [he] initiated some sort of contact with her 

that she said she didn’t want.” Defendant testified that he felt remorseful about the 

relationship because both he and Teri were married.

Eventually, in May 2012, Teri sat down with defendant and “asked [him] if it’s 

okay with [him] to stop doing the massages” and he said “sure.” Defendant testified that 

he felt “[r]elieved” by her request because he “just didn’t want to continue doing 

something that I knew in my heart was wrong.” The next time defendant delivered mail 

at the house he had her sign for delivery of certified mail. Out of the blue, she said, 

“stop, Rocky; stop.” He testified that he had not hugged, kissed, massaged, or otherwise 

touched or asked to touch Teri, and did not have any idea why she told him to stop. He 

asked her, “what do you mean? Stop what?” and she responded “stop means stop, or 

something in that sort. Leave.” According to defendant, Teri “was speaking loudly 

enough that somebody . . . could have heard her” from “anywhere in the house.” 

Defendant testified he “said okay” and left.

The prosecution also put on evidence that defendant had touched four other 

women in an inappropriate sexual manner. Susan N. is a clerk at the Apple Valley Post 
10

Office who said she had a friendly relationship with defendant. She testified that in 2009, 

defendant used his hand to “grope [her] breast” during a hug in a hallway at work. After 

she walked away, she looked back at him and he “lifted up both hands, put them at about 

shoulder level” and “opened the fingers and closed the fingers, as if it’s a kind of a 

squeezing motion.” Susan N. testified that she “was in shock, and . . . humiliated” so she 

“just tried to pretend like nothing happened.” A couple days later, she reported the 

incident to supervisors.

Sandra G. is a longtime resident of Apple Valley and postal customer of 

defendant. She testified that in 2009 he asked her for a hug. Initially, she ignored the 

request, but “then he asked me again, oh, aren’t you going to give Rocky a hug?” When 

she complied, against her better judgment, “[h]e took his left hand and put it around me

and pulled me in real tight, and then brought his other hand up and grabbed my breast and 

had a hold of my breast.” She “tried to pull away, but he had me pulled really tight.” 

Four weeks later, she complained to the post office. The post office disciplined 

defendant for this incident.

Amanda W. is Teri’s oldest daughter. She testified that defendant delivered mail 

to her home for as long as she could remember. Amanda testified that defendant touched 

her inappropriately in 2011, when she was 19 years old. According to Amanda, 

defendant let himself in through the gate to the yard, grabbed her by the waist, pulled her 

close, held her for two to three minutes, and asked her several times to kiss him. After 

Amanda told defendant she would not kiss him, he kissed her on the forehead. Amanda 
11

then took the mail he had delivered, walked into the house, and locked the door. She did 

not tell anyone about the incident until a month before trial in 2014. She said she did not 

complain earlier because she was scared of defendant.

Cindy C. was defendant’s coworker at the post office. In 2010, Cindy C. accused 

defendant of touching her breast. A couple days later, defendant joked to other 

employees that “at least it happened to somebody who enjoyed it.” Cindy C. did not 

testify at trial, but defendant admitted these facts.

Defendant’s response to each of these incidents was the same; he denied them. He 

told the deputy who investigated Teri’s complaint that he had been accused of groping 

Sandra G.’s breast, but said her complaint was unfounded. He also told the deputy that 

he had been “cleared of those allegations.” Though law enforcement did not press 

charges against him, the post office disciplined defendant for his conduct. At trial, 

defendant testified that Sandra G. “wasn’t telling the truth” in her testimony to the jury 

and said he never grabbed her breast. His testimony about Susan N.’s allegations was the 

same. Defendant denied her allegations and testified that Susan N. “wasn’t telling the 

truth” when she told the jury he had grabbed her breast. Similarly, with respect to 

Amanda’s allegations, defendant denied he had “hugged her inappropriately and 

wouldn’t let her go” and denied Amanda ever “tried to avoid or tried to stop [him] from 

hugging her.” He also denied he had ever “asked her to kiss and hug [him].” According 

to defendant, Amanda was “not telling the truth either.” Finally, he admitted he touched 

Cindy C.’s breast, but contended it was an accident.
12

With regard to “evidence that the defendant committed other offenses” against 

Teri “that were not charged in this case” the trial court instructed the jury that it could

“consider this evidence only if the People have proved by a preponderance of the 

evidence that the defendant in fact committed the offense.” If the jury found the People 

had met that burden, the court explained, it was permitted to “consider that evidence for 

the limited purpose of deciding whether or not the defendant acted with the specific intent 

required to prove a crime charged in this case, the defendant’s alleged actions were the 

result of a mistake or accident, the defendant had a plan or scheme to commit the 

offenses alleged in this case, or the defendant reasonably and in good faith believed that 

Teri W. consented.”

With regard to “evidence that the defendant committed the crimes of sexual 

battery of Susan N., sexual battery of Sandra G., and sexual battery of Amanda W., that 

were not charged in this case,” the court instructed that “[y]ou may consider this evidence 

only if the People have proved by a preponderance of the evidence that the defendant, in 

fact, committed the uncharged offenses . . . [and] you may, but are not required to, 

conclude from that evidence that the defendant was disposed or inclined to commit 

sexual offenses. And based on that decision, also conclude that the defendant was likely 

to commit and did commit one or more of the crimes as charged here.” The court also 

instructed the jury that it could, in addition, consider this information for the limited 

purposes set out in the prior paragraph, including for concluding defendant acted with 

specific intent in committing a charged offense.
13

On June 24, 2014, the jury convicted defendant on the count of committing a lewd 

act on Brianna, but acquitted him on the child molestation count and the burglary count,

as well as the sexual battery and aggravated sexual battery counts related to his treatment 

of Teri.

On September 19, 2014, the trial court held a hearing to determine whether to 

sentence defendant to probation or prison and, if prison, whether to sentence him to a 

term of three, six, or eight years allowed by section 288, subdivision (a). The court 

considered a victim impact statement by Teri, a probation report, a psychological 

assessment, and the evidence presented at trial.

A psychologist examined defendant as required before granting probation to any 

defendant “convicted of committing any lewd or lascivious act.” (§ 288.1.) The 

psychologist concluded defendant “has readily apologized for the harm he had caused 

both to the victims as well as his wife and family. . . . His personality structure or history 

do not suggest that he has any pedophilic or sexually deviancy per se and he does not 

pose a danger to children or society at large. . . . He is genuinely repentant of his 

misdeed and is extremely unlikely to repeat the behavior.” Based on these findings, the 

psychologist recommended “defendant be given probation during which he should seek 

continuing counseling from his pastor as determined by the pastor.”

The probation officer concluded that the following factors supported probation: 

(i) the nature and circumstances of the crime were not serious compared with other 

instances of the crime, (ii) defendant’s prior record does not indicate a pattern of regular 
14

or increasingly serious criminal conduct, (iii) defendant was not subject to parole or 

probation at the time of the offense, (iv) defendant indicated a willingness to comply with 

the terms of probation, (v) defendant had the ability to comply with the terms of 

probation, (vi) imprisonment would seriously affect defendant and his dependents, (vii) a 

felony conviction would adversely affect defendant’s life, (viii) defendant had shown 

remorse, and (ix) defendant would not pose a danger to others if released. However, the 

probation officer “recommended that probation be denied” based on the mistaken belief 

that “the court did not refer the defendant for a PC 288.1 report,” a statutory prerequisite 

for probation.

The probation officer found that the “planning, sophistication or professionalism” 

of the crime aggravated the offense, and the fact that defendant “would have been granted 

probation” had he been eligible mitigated the offense. The probation officer 

recommended the middle term sentence because “the circumstances in aggravation and 

those in mitigation . . . are of approximately equal weight.”

The court found defendant had touched an intimate part of someone’s body, but 

agreed with the probation report that “the circumstances of this particular offense, 

compared to the circumstances of other cases of PC 288, which I have heard, . . . puts this 

at the lower end of the scale as far as . . . your actions and the seriousness of this 

offense[.]” However, the trial court disagreed with many of the other findings in the 

psychological assessment and the probation report. First, the court found that defendant 

does have a record of prior criminal conduct that indicates a pattern of increasing 
15

seriousness. Second, because defendant has a prior felony conviction, the court found the 

conviction will not adversely affect his life. Third, the court found that defendant has not

shown remorse for his conduct. Fourth, the court found that defendant would be a danger 

to others if not imprisoned. The court explained its findings as follows: “I believe that it 

appears from my perspective that you do have a pattern of increasing seriousness to the 

conduct that you’ve engaged in.” There is “a felony conviction . . . in a prior case . . . 

[s]o I don’t see that as a factor to consider. . . . I don’t see that you’ve shown any 

remorse whatsoever for your conduct. . . . I disagree . . . there is little likelihood that if 

not imprisoned the defendant will be a danger to others. . . . I think that you are a serial 

offender, based upon the information that I’ve heard during the course of this trial. I 

think we’ve seen the tip of the iceberg with respect to what your conduct has been with a 

number of people that testified before this Court. Your history of employment and 

discipline within the United States Postal Service gives me that clear indication, and you 

seem to be emboldened by the accusations and not dissuaded by them.”

For those reasons, the court decided probation was inappropriate and sentenced 

defendant to the statutory middle term of six years in state prison.

II

DISCUSSION

A. Sufficiency of Evidence

Defendant argues his conviction for lewd conduct with Brianna should be reversed 

because the prosecution presented insufficient evidence “to establish that appellant acted 
16

with the specific intent of obtaining sexual arousal or gratification.” He contends Brianna 

testified only about the “nature of appellant’s alleged acts” and “the record was 

completely silent with respect to any evidence establishing that he did so for purposes of 

sexual gratification.” We disagree.

On a challenge to the sufficiency of evidence supporting a conviction, we 

“‘examine the whole record in the light most favorable to the judgment to determine 

whether it discloses substantial evidence—evidence that is reasonable, credible and of 

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same 

standard of review applies to cases in which the prosecution relies primarily on 

circumstantial evidence . . . . [Citation.] [I]f the circumstances reasonably justify the 

jury’s findings, the judgment may not be reversed simply because the circumstances 

might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. 

Houston (2012) 54 Cal.4th 1186, 1215; accord, People v. Hajek and Vo (2014) 58 Cal.4th 

1144, 1182-1183.) This standard is high, requiring an appellate court to “accept logical 

inferences that the jury might have drawn from the evidence even if the court would have 

concluded otherwise.” (People v. Combs (2004) 34 Cal.4th 821, 849.)

Penal Code section 288, subdivision (a) proscribes “any lewd or lascivious act . . . 

upon or with the body, or any part or member thereof, of a child who is under the age of 

14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or 
17

sexual desires.” (Pen. Code, § 288, subd. (a).) “Criminal intent will rarely be shown by 

direct evidence and must frequently be inferred from a defendant’s conduct.” (People v. 

Gilbert (1992) 5 Cal.App.4th 1372, 1380.) “‘[T]he trier of fact looks to all the 

circumstances, including the charged act, to determine whether it was performed with the 

required specific intent.’” (People v. Martinez (1995) 11 Cal.4th 434, 445, quoting 

People v. Scott (1994) 9 Cal.4th 331, 344, fn. 7.) Among other factors, the manner of the 

touching is relevant to deciding whether defendant had the requisite specific intent. 

(Ibid.) In addition, because a violation of Penal Code section 288, subdivision (a) is a 

sexual offense,4 under Evidence Code section 1108, subdivision (a), “evidence of . . .

defendant’s other sex offenses constitutes relevant circumstantial evidence that he 

committed the charged sex offenses.”

5

(People v. Falsetta (1999) 21 Cal.4th 903, 920; 

see also People v. Villatoro (2012) 54 Cal.4th 1152, 1160 (Villatoro) [“[I]n a sex offense 

case, as here, the Legislature has made the careful determination that evidence the 

defendant committed one or more sex offenses may be properly considered pursuant to 

 

4 Conduct that violates Penal Code section 288 is defined as a sexual offense. 

(Evid. Code, § 1108, subd. (d)(1)(A).)

5 Evidence Code section 1108 permits “evidence of the defendant’s 

commission of another sexual offense or offenses” in any “criminal action in which the 

defendant is accused of a sexual offense,” provided that “the evidence is not inadmissible 

pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108.) Evidence Code section 

352 provides that a trial 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.” (Evid. Code, § 352.)
18

[Evidence Code] section 1108”].) Other sex offenses may be charged or uncharged and 

must be proved by a preponderance of the evidence. (Villatoro, supra, at pp. 1164-1165.)

The jury heard sufficient evidence to conclude defendant touched Brianna with the 

specific intent to obtain sexual gratification. Brianna testified that defendant came into 

her house when she was 13 and “hugged me and he grabbed me,” and used his hand to 

“touch[] my butt.” She described his manner of touching her buttocks as “grabb[ing]” 

and “squeezing.” She testified he had touched her “on purpose” and that it made her feel 

“[v]ery uncomfortable.” She also testified that defendant had hugged her many times in 

the past, without touching her in a similarly intimate fashion. The jury evidently credited

Brianna’s testimony and rejected defendant’s denials. Both the placement and the 

manner of defendant’s touching support the conclusion that defendant touched Brianna 

with the specific intent to obtain sexual gratification. First, defendant touched Brianna on 

a part of her body that is considered intimate—both in the commonsense understanding 

of the term and as it is defined by the sexual battery statute.

6

 Though section 288, 

subdivision (a) condemns the sexually motivated touching of any part of the body of a 

child under 14 years old (Martinez, supra, 11 Cal.4th at p. 451), the fact that defendant 

touched Brianna’s buttocks, rather than her shoulder or arm, supports the inference that 

 

6 Section 243.4 defines “intimate part” of the body to mean “the sexual 

organ, anus, groin, or buttocks of any person, and the breast of a female.” (§ 243.4, subd. 

(g)(1).) The jury instructions informed the jury of this definition.
19

he acted with the specific intent to obtain sexual gratification.7 Second, defendant

grabbed and squeezed Brianna’s buttocks, an act that is most naturally interpreted as 

sexual. Brianna evidently understood his conduct that way, because she testified she 

believed defendant acted on purpose and that the touching made her very uncomfortable

at the time. While it is true that defendant could have a nonsexual reason for touching 

Brianna’s buttocks, the jury was free to adopt the reasonable inference that defendant had

the requisite intent.

Brianna’s testimony did not stand on its own. The jury also heard circumstantial 

evidence that defendant acted with the requisite intent in the form of testimony that 

defendant had a propensity to commit similar sexual offenses. Sandra G., a postal 

customer, testified that defendant asked her for a hug and then “took his left hand and put 

it around me and pulled me in real tight, and then brought his other hand up and grabbed 

my breast and had a hold of my breast.” Susan N., a coworker, testified that defendant 

used his hand to “grope [her] breast” during a hug in a hallway at work and then, 

afterward, taunted her with a crude gesture. Amanda, a postal customer and Brianna’s

older sister, testified that defendant let himself in through the gate to her yard, grabbed 

 

7 Defendant contends evidence about his “act of inappropriately touching 

Brianna’s posterior” cannot be “evidence of lewd intent” because “the intent element is 

separate and independent from the physical act . . . .” This argument is simply mistaken. 

The same evidence may be relevant to proving two different elements of an offense. In 

this case, the evidence that defendant touched Brianna’s buttocks is direct evidence that 

he touched her body and circumstantial evidence that he did so with the specific intent of 

obtaining sexual gratification.
20

her by the waist, pulled her close, held her for two to three minutes, and asked her several 

times to kiss him. Defendant admitted that Cindy C., another coworker, accused him of 

touching her breast and that he later taunted her about it by joking to other coworkers that 

“at least it happened to somebody who enjoyed it.” Finally, Teri, Brianna’s mother, 

testified that defendant touched her inappropriately on multiple occasions. Teri described 

in detail two of those incidents that were not the basis of any charges in the case. She

testified that while she was sitting in her car at the centralized mailboxes defendant once 

“reached in my car and grabbed” her breast and another time “stuck his head in my 

window and kissed me.”

The testimony of at least four of these other victims was sufficient to allow a jury 

to conclude by a preponderance of the evidence that defendant committed sexual battery 

by “touch[ing] an intimate part of another person . . . against the will of the person 

touched . . . for the specific purpose of sexual arousal. . . .” (§ 243.4, subd. (e).) Sandra 

G., Susan N., and Teri testified that defendant groped their breasts without consent.8 

Defendant admitted Cindy C. accused him of touching her breast against her will. 

Section 243.4, subdivision (g)(1) provides that the breast of a female person is an 

intimate part within the meaning of the statute. In addition, the jury heard testimony that 

defendant was formally disciplined by the post office for his treatment of Sandra G. 

 

8 Amanda’s allegations do not appear to support finding a sexual battery 

because she did not accuse defendant of touching an intimate part of her body as defined 

in the statute.
21

Though defendant denied the charges against him were true, the jury could reasonably 

have credited his accusers’ testimony. Moreover, the conclusion that defendant sought 

sexual gratification from his groping was also supported by testimony that on two 

occasions defendant made crude gestures or comments related to his behavior. From all 

this evidence the jury could reasonably have concluded that defendant had committed a 

series of prior sexual offenses.

The jury could reasonably have concluded from these prior sexual offenses that 

defendant had a propensity to commit similar sexual offenses and that defendant had the 

specific intent to obtain sexual gratification by groping Brianna. The court properly 

instructed the jury that if it found prior instances of sexual battery, it was permitted to 

“consider that evidence for the limited purpose of deciding whether or not the defendant 

acted with the specific intent required to prove a crime charged in this case” and to 

“conclude from that evidence that the defendant was disposed or inclined to commit 

sexual offenses, and based on that decision, also conclude that the defendant was likely to 

commit and did commit one or more of the crimes, as charged here.”

The court also properly instructed the jury that “[i]f you conclude that the 

defendant committed the uncharged offenses that conclusion is only one factor to 

consider along with all the other evidence. It is not sufficient by itself to prove that the 

defendant is guilty of any crime.” Taken together with Brianna’s testimony regarding the 

nature and manner of defendant’s unwanted touching, however, the jury could reasonably 
22

conclude from these other sexual offenses that defendant had the specific intent to touch 

Brianna to obtain sexual gratification.

The jury may also reasonably have reached its verdict based on the conclusion that 

defendant was lying about his conduct with his other accusers. Leaving aside Brianna 

and Teri, three women took the difficult step of confronting defendant publicly in front of 

a jury to testify about a humiliating encounter with defendant. Susan N. testified that she 

“was in shock, and . . . humiliated” by defendant’s conduct so she “just tried to pretend 

like nothing happened” and did not report it to supervisors for a couple of days. Sandra 

G. did not report defendant’s conduct for four weeks, and even then she testified she 

“really wasn’t going there to report it,” but instead to ask whether “anybody ever came in 

here and made any kind of complaint against one of your postal workers.” Amanda’s 

response to defendant’s conduct was to go directly into her house after defendant released 

her and lock the door. Defendant’s response to each woman was dismissive. He testified 

that Sandra G. “wasn’t telling the truth” in her testimony to the jury and said he never 

grabbed her breast. He testified that Susan N. “wasn’t telling the truth” when she told the 

jury he had grabbed her breast. He testified that he never tried to kiss Amanda and she 

was “not telling the truth.” The jury could reasonably have credited the testimony of the 

women who testified against defendant and concluded defendant was lying. That

conclusion further supports the jury’s decision to discount defendant’s denial that he 

squeezed Brianna’s buttocks for sexual gratification and his testimony that Brianna—like 

all his other accusers—“didn’t tell the truth either.”
23

The jury heard evidence that defendant touched Brianna on an intimate part of her 

body, that he did so in a manner most naturally interpreted as sexual, and that he has a 

propensity for touching women in this manner. This is substantial evidence that supports 

the jury’s verdict.

Defendant contends the prosecution “did not and could not seek to admit” 

evidence of defendant’s other offenses “for the purpose of establishing appellant’s 

alleged intent with respect to Brianna” because the “evidence of appellant’s alleged 

sexual desires with respect to adult women is plainly irrelevant to his intent with respect 

to his physical contact with Brianna.” We disagree. The trial court permitted the 

Evidence Code section 1108 testimony without limitation and, as we have seen,

instructed the jury that it could conclude on the basis of that evidence “that the defendant 

was likely to commit and did commit one or more of the crimes as charged here.” 

(Italics added.) If, as defendant argues, the evidence of other offenses should have been 

excluded as it pertains to defendant’s treatment of Brianna, either because it is irrelevant 

or unduly prejudicial, defendant should have objected on that basis at trial and objected to 

the trial court’s instruction regarding the use of evidence of other offenses. (See People 

v. Holloway (2004) 33 Cal.4th 96, 133.)

Defendant contends that In re Jerry M. (1997) 59 Cal.App.4th 289 (Jerry M.) 

supports reversing his conviction. We disagree. The critical fact in Jerry M. was that the 

defendant was an 11-year-old boy, and the critical lacuna in the prosecution’s case was 

that “there [was] no evidence he had reached puberty.” (Id. at p. 300.) By contrast, 
24

defendant in this case is a mature man. Thus, the question whether he was capable of 

sexual arousal does not arise. Even if it did, defendant’s own testimony about his 

relationship with Brianna’s mother establishes he is capable of sexual arousal. Thus, the 

jury’s inference that he touched Brianna with the specific intent of obtaining sexual 

gratification was not missing the same critical premise. Moreover, the defendant in Jerry 

M. suggested his conduct was sexually innocent because he was engaged in teasing 

conduct meant to irritate. Defendant in this case did not offer any innocent excuse for 

squeezing Brianna’s buttocks; he simply denied it happened at all. The jury could 

reasonably reject that denial.

B. Sentencing

Defendant contends the trial court abused its discretion because it “relied on 

plainly improper factors in denying probation and sentencing appellant to the middle term 

of six (6) years, rather than the lower term of three (3) years. . . .” Specifically, defendant 

contends the trial court erred by relying on defendant’s commission of sexual offenses 

against victims other than Brianna and his lack of remorse. We disagree.

“California law affords the trial court broad discretion to consider relevant 

evidence at sentencing.” (People v. Towne (2008) 44 Cal. 4th 63, 85 (Towne).) “[T]he 

court may consider the record in the case, the probation officer’s report, . . . and 

statements in aggravation or mitigation submitted by the prosecution, the defendant, or 

the victim, . . . and any further evidence introduced at the sentencing hearing.” (§ 1170, 

subd. (b); also ibid.) The trial court may also consider any “criteria reasonably related to 
25

the decision being made.” (Cal. Rules of Court, rule 4.408(a); also Towne, supra, at 

p. 85.)

We review the trial court’s exercise of discretion at sentencing for abuse. (People 

v. Ferguson (2011) 194 Cal.App.4th 1070, 1091 [“The decision whether to grant or deny 

probation is reviewed under the abuse of discretion standard”]; People v. Avalos (1996) 

47 Cal.App.4th 1569, 1582 [“The trial court did not abuse its discretion by imposing the 

midterm [sentence] on count four”]; see also § 1170, subd. (b) [“When a judgment of 

imprisonment is to be imposed and the statute specifies three possible terms, the choice 

of the appropriate term shall rest within the sound discretion of the court”].) We are 

required to presume the trial court acted to achieve legitimate sentencing objectives. 

(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) A “‘decision will not 

be reversed merely because reasonable people might disagree. An appellate tribunal is 

neither authorized nor warranted in substituting its judgment for the judgment of the trial 

judge.’ [Citations.]” (Id. at p. 978.) We may displace the trial court’s decision only if 

there is a clear showing the sentence was arbitrary or irrational. (People v. Sandoval

(2007) 41 Cal.4th 825, 847 (Sandoval).) A trial court abuses its discretion if it relies 

upon circumstances that are not relevant to, or that otherwise constitute an improper basis

for, the sentencing decision. (Ibid.)

The trial court had a reasonable basis for denying probation. It found that 

defendant touched an intimate part of Brianna’s body but recognized that he did so in a 

way that “puts this at the lower end of the scale as far as . . . the seriousness of this 
26

offense.” That fact counsels in favor of probation. (Cal. Rules of Court, rules 4.414 & 

4.414(a)(1).) However, the court decided to deny probation based on indications of 

defendant’s recidivism. Defendant admitted he was convicted for a serious domestic 

assault against his former wife in 1986. Though that offense was remote in time, the 

court also looked to the Evidence Code section 1108 evidence of defendant’s other sexual 

offenses and the conviction in this case to find defendant is a “serial offender” who 

would be “a danger to others if not imprisoned.” The court’s conclusion is well 

supported by the trial evidence. As the court noted, four women other than Brianna 

testified before the court that defendant had committed sexual batteries against them, and 

defendant’s employer, the United States Postal Service, reprimanded defendant for one of 

those incidents. This evidence gave the court a reasonable basis for denying probation. 

Since the trial court was permitted to consider “[t]he likelihood that if not imprisoned the 

defendant will be a danger to others” (Cal. Rules of Court, rule 4.414(b)(8)) as well as 

any “criteria reasonably related to the decision being made” (Cal. Rules of Court, rule 

4.408(a)), we cannot say the court’s decision was arbitrary, irrational, or based on an 

improper consideration. (See Towne, supra, 44 Cal.4th at pp. 85-86.)

The trial court also acted reasonably in imposing a middle term six-year sentence. 

The selection of the term from the statutorily specified triad, like the decision to grant or 

deny probation, is discretionary. (Sandoval, supra, 41 Cal.4th at p. 847.) Reversal is 

proper only if defendant makes a clear showing the sentence is arbitrary or irrational.

(Ibid.) The court was permitted to consider any relevant factors in choosing among those 
27

sentences. We hold that the court’s concerns about recidivism discussed ante provided 

the trial court with an adequate basis for selecting the middle term sentence. Though the 

court was not required to find aggravating factors to impose the middle term sentence, we 

note in addition that the probation report supported finding the “manner in which the 

crime was carried out indicates planning, sophistication, or professionalism.” (See Cal. 

Rules of Court, rule 4.421 (a)(8).) Accordingly, we hold that the sentence was properly

“based upon an ‘individualized consideration of the offense, the offender, and the public 

interest.’” (Sandoval, supra, at p. 847.) The trial court did not abuse its discretion.

Defendant contends the court erred by looking to Evidence Code section 1108 to 

support its denial of probation and its sentence. We disagree. The general principles set 

out by Penal Code section 1170 and the California Rules of Court regarding sentencing 

make clear that the trial courts may consider any relevant evidence for purposes of 

determining the appropriate sentence. First, Penal Code section 1170, subdivision (b) 

provides “the choice of the appropriate term shall rest within the sound discretion of the 

court,” and specifies that “[i]n determining the appropriate term, the court may consider 

the record in the case, the probation officer’s report, other reports, . . . and statements in 

aggravation or mitigation . . . and any further evidence introduced at the sentencing 

hearing.” (Pen. Code, § 1170, subd. (b), italics added.) The court admitted testimony of 

Sandra G., Susan N., and Amanda as relevant evidence regarding defendant’s proclivity 

to commit sexual batteries. Teri also provided such testimony concerning two uncharged 

offenses. All of this testimony is therefore relevant and part of the record of this case. 
28

(Villatoro, supra, 54 Cal.4th at p. 1160.) There can be no question this proclivity 

evidence is also relevant to the likelihood that defendant would harm others if not 

imprisoned. California Rules of Court, rule 4.408 specifies that the trial court may 

consider any “criteria reasonably related to the decision being made.” (See also Towne, 

supra, at p. 85.) Since “[p]reventing the defendant from committing new crimes by 

isolating him or her for the period of incarceration” is one of the general objectives of 

sentencing (Cal. Rules of Court, rule 4.410(a)(5)), evidence of defendant’s multiple prior 

sexual batteries is reasonably related to the sentencing decision. We therefore conclude 

that the court properly considered the testimony of defendant’s prior victims in denying 

probation and deciding on an appropriate sentence.

Defendant contends the trial court erred in considering the evidence of his 

uncharged sexual batteries because they were insufficiently related to the offense against 

Brianna. He presents People v. Coulter (1983) 145 Cal.App.3d 489 and People v. Searle 

(1989) 213 Cal.App.3d 1091 as holding that a “trial court may not use the facts relating to 

one count to aggravate the sentence as to a different count” unless the crimes are 

“transactionally related.” According to defendant, if he “cannot be sentenced based on 

transactionally unrelated counts for which he has been convicted, surely he cannot be 

sentenced based on equally unrelated counts for which he has been acquitted, or for 

which he was never charged.”

Defendant’s reliance on these authorities is misplaced. In Coulter, the trial court 

found the base offense involved multiple victims, though defendant committed two 
29

unrelated offenses and each harmed a single victim. (People v. Coulter, supra, 145 

Cal.App3d at pp. 491-492.) In Searle, the trial court found the base offense involved the 

participation of minors, though the minors were involved in two unrelated crimes. In 

both cases, the Court of Appeal held that the trial court erred by using facts about the 

unrelated offenses as if they were circumstances relating to the base offense that justified

imposing an upper term sentence under California Rules of Court, rule 4.421(a). Here, 

the trial court did not consider the evidence related to defendant’s other sexual offenses to 

reach any conclusion about defendant’s offense at all. It used evidence of those offenses 

to reach a conclusion about defendant, specifically, that he is a recidivist who poses a 

threat to other potential victims. Nor did the court rely on the evidence to find an 

aggravating factor justifying an upper term sentence. Defendant has not identified any 

authority suggesting it is an abuse of discretion for a court to consider evidence of 

defendant’s recidivism to impose a middle term sentence, and we hold the court’s 

consideration of that evidence was permissible for that purpose.

Defendant contends his sentence should be reversed on the ground that the trial 

court improperly based its sentencing decision on evidence related to the sexual battery 

and aggravated sexual battery counts involving Teri. He objects on the ground that the 

jury acquitted him of those offenses. We have reviewed the record and do not understand 

the trial court to have relied on evidence related to the acquittals. The court did not 

mention that evidence in setting out its reasons for denying probation and imposing the 

middle term sentence. We understand the prosecutor’s statements that the other sexual 
30

offenses “[don]’t have to be a conviction” and the court’s statement that it relied on 

“information that I’ve heard during the course of the trial” to refer to the evidence of 

other uncharged sexual offenses, which we have held the court was permitted to consider 

in deciding on the appropriate sentence. Defendant admits “the record is unclear as to 

whether it did in fact consider” evidence related to the acquittals. We conclude defendant 

has not sustained his burden of showing the court abused its discretion.

Defendant also contends his sentence should be reversed because the trial court 

improperly based its sentencing decision on his lack of remorse. The probation report 

found that defendant showed remorse for his conduct as a basis favoring probation. 

Defendant relies on People v. Key (1984) 153 Cal.App.3d 888, which held that lack of 

remorse is not a valid reason to aggravate a sentence where the defendant denies the 

charges and the evidence of guilt is not overwhelming. (Id. at p. 901.) We do not find 

Key relevant to this case. Here, the trial court disagreed with the probation report finding 

that defendant showed remorse only as a reason to deny probation. The court did not find 

lack of remorse to be a reason to aggravate defendant’s sentence. Indeed, the trial court 

found no aggravating factors and imposed the middle term sentence. In any event, even 

if the court did consider defendant’s lack of remorse as a reason for choosing the middle 

term sentence, other reasons for imposing that sentence discussed ante provided 

adequate, independent support for the sentence. Any error was therefore harmless.
31

III

DISPOSITION

We affirm the judgment.

CERTIFIED FOR PARTIAL PUBLICATION

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

CODRINGTON

J.