Filed 11/23/15 P. v. Bonilla CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE SAUL BONILLA,

Defendant and Appellant.

F067224

(Super. Ct. No. BF137948A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, 

Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOooJose Saul Bonilla appeals from a judgment convicting him of one count of rape of 

a child and two counts of lewd act on a child. He challenges: (1) the sufficiency of the 

evidence to support his lewd act conviction in count 1; (2) the trial court’s failure to 

instruct on attempted lewd act as a lesser included offense of count 1; (3) the admission 

of uncharged sexual offense evidence; and (4) the imposition of a 25-year-to-life term for 
2.

his rape conviction in count 2. We agree with Bonilla’s last contention, and the People 

concede, that the 25-year-to-life term imposed for his rape conviction violated the ex post 

facto clauses of the United States and California Constitutions because he committed the 

offense before the effective date of the applicable provision of the “One Strike” law (Pen. 

Code,1 § 667.61). We therefore vacate Bonilla’s sentence and remand the matter for 

resentencing under the law in effect at the time Bonilla committed his offenses. In all 

other respects, we affirm the judgment of conviction.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules of appellate review (People v. Ochoa 

(1993) 6 Cal.4th 1199, 1206), the evidence established the following.

A. Counts 2 and 3: Rape and Lewd Act against L.J.

L.J.,2 who was 17 years old at the time of trial in February 2013, testified that, 

when she was around 10 years old, she lived across the street from Bonilla. At that time, 

she frequently went over to his house because she was friends with his daughter. 

One evening when L.J. went over to Bonilla’s house, he met her at the front door. 

When she asked if his daughter was home, Bonilla said no, grabbed L.J. by the arm, and 

pulled her inside the house. He then pulled her into his bedroom and placed her on his 

bed, where he pulled down her pants and underwear. While holding L.J. down, Bonilla 

had sexual intercourse with her. At some point, he remarked that “his wife didn’t give 

him any.” Afterwards, Bonilla threatened to kill L.J. if she told anyone what happened. 

Due to her resulting fear, L.J. did not report the rape for several years. 

 

1 Further statutory references are to the Penal Code unless otherwise specified.

2

In this opinion, certain persons are identified by initials, abbreviated names and/or by 

status in accordance with our Supreme Court’s policy regarding protective nondisclosure. No 

disrespect is intended. 
3.

In July 2011, L.J. described the incident to a detective assigned to the police 

department’s child abuse sexual assault unit. At trial, the detective opined that it was not 

uncommon for child abuse victims to delay reporting sexual abuse or to give inconsistent 

accounts of the abuse at different times. In the detective’s experience, children were 

often reluctant to provide full disclosures due to unaddressed feelings of guilt and shame. 

B. Uncharged Sexual Offense: Indecent Exposure against L.J.

On another occasion in May 2008, L.J. was outside in her front yard with a friend, 

when she saw Bonilla, who was sitting on the side of his house, “flashing [her] his penis” 

and “[j]acking off.” After Bonilla continued to do this for some time, L.J. felt like she 

could not “keep dealing with this harassment” and went inside her house to tell her 

mother.3 When she talked about the incident with the police in 2008, she did not tell 

them about Bonilla raping her when she was 10 years old. J.M. explained she was still 

scared and embarrassed about what had happened to her. 

C. Count 1: Lewd Act against J.M.

J.M., who was 12 years old at the time of trial, testified that on June 28, 2011, she 

was playing outside with her friend K.B., when they encountered Bonilla riding a bicycle. 

Bonilla approached J.M. and asked her if she could show him around the neighborhood to 

see if there were any houses for sale. J.M. agreed because Bonilla seemed “nice.” K.B. 

started heading back to his house and J.M. led Bonilla in the same direction. 

When they were near K.B.’s house, Bonilla remarked to J.M. that “this one girl 

comes in my room at night and she tries to have sex with me.” Bonilla then gave J.M. a 

kiss on her cheek and told her she was beautiful. After Bonilla kissed her, J.M. ran to 

K.B.’s house to tell someone what happened. J.M. was scared when Bonilla kissed her 

cheek because he was a “total stranger” and she knew it was wrong. 

 

3 On cross-examination, L.J. testified that Bonilla had similarly “flashed” her on previous 

occasions, but she was unclear about the details, including when these occasions took place, and 

admitted she had never told anyone about them prior to her testimony. 
4.

After J.M. caught up with K.B. and told him Bonilla had kissed her, Bonilla 

approached the two children and invited them to go to the park with him to play 

basketball. K.B., who was 11 years old at the time of trial, testified that he responded to 

Bonilla’s invitation by pointing out that they had a basketball hoop right there. However, 

Bonilla persisted in asking them to go to the park with him. Eventually, K.B. told Bonilla 

“let me go get a basketball” and went inside his house and alerted his grandfather. 

K.B.’s grandfather came out of the house and told Bonilla to “get out of here.” 

After being asked a number of times to leave, Bonilla finally rode away on his bicycle 

when K.B.’s grandfather threatened to call the police. A short time later, J.M.’s mother 

tracked Bonilla down in her car, asked him what happened, and took a picture of him on 

her cell phone. Bonilla smiled and kept repeating, “I don’t want any problems.” 

D. Trial outcome

On March 4, 2013, a jury convicted Bonilla of two counts of committing a lewd 

act on a child under 14 (§ 288, subd. (a); counts 1 & 3) and one count of rape of a child 

under 14 (§§ 261, subd. (a)(2), 264, subd. (c)(1); count 2). The jury also found true the 

multiple victim enhancement allegation attached to each count (§ 667.61, subd. (e)(4)). 

The trial court sentenced Bonilla to an aggregate prison term of 40 years to life as 

follows: 15 years to life for count 1, plus 25 years to life for count 2, and 15 years to life 

for count 3 (stayed under section 654). This appeal followed.

II.

DISCUSSION

A. Sufficiency of the Evidence

Bonilla contends there is insufficient evidence to support his conviction for 

committing a lewd act on J.M. (§ 288, subd. (a); count 1). He argues the record lacks 

substantial evidence he had the requisite lewd intent when he kissed her cheek. We 

disagree.
5.

“‘When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the 

judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.’” (People v. D’Arcy (2010) 48 

Cal.4th 257, 293.)

Bonilla was convicted of violating section 288, subdivision (a), which states: 

“[A]ny person who willfully and lewdly commits 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 sexual desires 

of that person or the child, is guilty of a felony ....”

The purpose of the statute is to protect children from being sexually exploited. 

(People v. Martinez (1995) 11 Cal.4th 434, 443–444 (Martinez).) No matter how 

innocent its outside appearance, if the conduct in question is intended to arouse the lust, 

passion or sexual desire of the perpetrator or the child, “‘it stands condemned by the 

statute.’” (Id. at p. 444.) “[M]odern courts state or imply that any touching of an

underage child is ‘lewd or lascivious’ within the meaning of section 288 where it is 

committed for the purpose of sexual arousal.” (Id. at p. 445.) All of the circumstances 

attendant to the conduct are relevant in making this determination. (Ibid.)

Bonilla argues the evidence in this case “merely” shows he “publicly kissed J.M. 

on the cheek in [a] manner consistent with non-sexual affection.” However, it is not an 

everyday occurrence for an adult male to approach an unfamiliar young girl and, shortly 
6.

thereafter, make a comment of a sexual nature to her and then kiss her cheek and 

compliment her physical appearance. Based on these circumstances a rational trier of 

fact could certainly find Bonilla kissed J.M.’s cheek for the purpose of sexual arousal. 

His assertions to the contrary are unpersuasive and essentially ask us to reweigh the 

evidence on appeal. This is not the function of the appellate court. (People v. Diaz

(1992) 3 Cal.4th 495, 541; People v. Palma (1995) 40 Cal.App.4th 1559, 1567.)

B. Refusal to Instruct on Attempted Lewd Act as a Lesser Included 

Offense of Count 1

Next, Bonilla contends that the trial court erred by denying his request to instruct 

the jury on attempted lewd act (§§ 664, 288, subd. (a)) as a lesser included offense of the 

lewd act charged in count 1. There was no error.

“[O]n appeal we employ a de novo standard of review and independently 

determine whether an instruction on the lesser included offense ... should have been 

given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.)

Attempted lewd act on a child is recognized as a lesser included offense of the 

completed crime. (People v. Herman (2002) 97 Cal.App.4th 1369, 1386 [defendant 

properly convicted of attempted child molesting where he offered teenage girls money to 

engage in sex and suggested they come with him to the park, but they declined]; People 

v. Imler (1992) 9 Cal.App.4th 1178, 1181 (Imler) [defendant committed attempted child 

molesting when he pretended to be holding a 12-year-old’s father hostage and, over the 

telephone, ordered the child to disrobe and touch his own penis, which the child did not 

do].)

The lewd act offense is committed whenever the defendant engages in any type of 

touching of a minor for sexual arousal, even if the touching is not inherently lewd and 

there is no actual arousal of sexual passion. (Martinez, supra, 11 Cal.4th at pp. 442, 444, 

452.) An attempt to commit a crime requires “‘a specific intent to commit it and a direct 
7.

but ineffectual act ... which is beyond mere preparation and yet short of actual 

commission of the crime.’” (Imler, supra, 9 Cal.App.4th at p. 1181.) 

In support of his claim of instructional error, Bonilla posits the theory that the jury 

here could have found he committed an attempted lewd act, instead of the completed 

offense, even if it found that he possessed the requisite lewd intent at the time he kissed 

J.M. on the cheek. This is so, he asserts, because the jury could have reasonably found 

his act of kissing J.M. on the cheek was not intended for his immediate sexual 

gratification but instead was intended to groom J.M., or gain her trust, for his “future 

gratification.” In other words, the jury could have found the kiss constituted an 

ineffectual act towards the completion of whatever future lewd act Bonilla had in mind 

when he kissed J.M. on the cheek.

We do not find Bonilla’s interpretation of the evidence particularly compelling. 

As exemplified by J.M.’s alarm after being kissed on the cheek by a total stranger, it is 

unlikely a rational trier of fact would have found Bonilla’s unorthodox behavior 

constituted an effort to “earn the trust and confidence of the victim” as he asserts on 

appeal. However, even if the jury were to accept Bonilla’s theory and find that his act of 

kissing J.M. was preparatory to a plan to touch her in a more provocative manner later for 

his sexual gratification, he still would have been guilty of a completed lewd act at that 

point because the touching would have been “sexually motivated by defendant’s 

lascivious desire.” (People v. Lopez (2010) 185 Cal.App.4th 1220, 1230.) Hence, his 

theory does not support his argument that the trial court should have instructed the jury 

on the lesser included offense of attempted lewd act.

The authority Bonilla cites to support his argument that an attempt instruction was 

required is inapposite. (See People v. Webb (1958) 158 Cal.App.2d 537, 542 [holding 

defendant could not be punished for both preparatory conduct (placing arm around 

child’s shoulder while going to secluded area and then placing hands on child just prior to 

oral copulation) and subsequent oral copulation].) Contrary to Bonilla’s suggestion, 
8.

Webb, supra, does not support the conclusion that a completed violation of section 288 

cannot be based on a touching that is part of, or incidental to, a plan to experience sexual 

gratification by touching the victim in a more blatantly sexual manner after a more 

innocuous appearing initial touching. Indeed, the California Supreme Court rejected a 

similar interpretation of the Court of Appeal’s decision in Martinez, supra, 11 Cal.4th 

434, explaining: “The [Webb] court never discussed cases allowing conviction for all

sexually motivated ‘touchings,’ nor did it acknowledge that section 288 had been 

construed in this manner. At most, Webb stands for the proposition that the defendant 

could not be fairly punished for any touchings that were purely incidental to the oral 

copulation, whether or not such touchings otherwise violated section 288.” (Martinez, at 

pp. 447–448, fn. 14, first italics added.) Because under Bonilla’s own theory his sexually 

motivated kissing of J.M.’s cheek would have violated section 288, his argument fails to 

demonstrate the trial court was under a duty to instruct the jury on the lesser included 

offense of attempted lewd act.

C. Admission of Uncharged Sexual Offense Evidence

Bonilla contends the trial court erred in admitting, over defense objection, 

evidence of his commission of indecent exposure in May 2008. He claims the evidence 

was not relevant to the present case and its admission was unduly prejudicial. We 

disagree and conclude the trial court properly exercised its discretion in finding the 

indecent exposure evidence admissible under Evidence Code sections 1108 and 352.4

The trial court’s ruling on the admissibility of uncharged sexual offense evidence 

is reviewed for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.) 

Thus, it “‘must not be disturbed on appeal except on a showing that the court exercised its 

 

4

In light of our conclusion, we need not resolve Bonilla’s claim that the evidence was also 

inadmissible under Evidence Code section 1101.
9.

discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest 

miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Evidence Code section 1101 prohibits the admission of character evidence, 

including evidence of specific instances of conduct, to prove a defendant’s conduct on 

another occasion. (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 

903, 913 (Falsetta).) An exception to the rule exists when evidence of an uncharged 

offense is relevant to prove a fact, such as motive, intent, common plan, identity, or 

absence of mistake or accident, other than disposition to commit the charged conduct. 

(Evid. Code, § 1101, subd. (b).)

Evidence Code Section 1108, subdivision (a) provides an additional and broader 

exception to the general rule by allowing propensity evidence in sex offense cases. 

(Falsetta, supra, 21 Cal.4th at p. 907.) Evidence Code section 1108, subdivision (a) 

states: “In a criminal action in which the defendant is accused of a sexual offense, 

evidence of the defendant’s commission of another sexual offense or offenses is not made 

inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 

352.”

Evidence Code Section 352 provides: “The 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.”

Bonilla contends the evidence of his commission of the uncharged offense of 

indecent exposure involving L.J. was not probative of his propensity to commit the 

charged sexual offenses against L.J. and J.M. and should have been excluded as unduly 

prejudicial under Evidence Code section 352. In support of his contention that the 

indecent exposure evidence was not relevant to this case, Bonilla relies heavily on People 

v. Earle (2009) 172 Cal.App.4th 372 (Earle). In Earle, the defendant was charged with 

two separate crimes—indecent exposure and assault to commit rape—involving two 
10.

different victims. The defendant moved to sever the charges for trial, arguing that a joint 

trial would be prejudicial. The trial court denied the motion, and the defendant appealed. 

(Id. at pp. 384–385.)

The Court of Appeal, in a two-to-one decision, reversed the assault conviction, 

concluding the trial court abused its discretion in denying the motion to sever because, 

absent expert testimony to the contrary, the commission of the indecent exposure did not 

rationally support an inference that the perpetrator had a propensity or predisposition to 

commit rape. (Earle, supra, 172 Cal.App.4th at p. 398.) The Earle court reasoned: “[A] 

propensity to commit one kind of sex act cannot be supposed, without further evidentiary 

foundation, to demonstrate a propensity to commit a different act. The psychological 

manuals are full of paraphilias, from clothing fetishes to self-mutilation, some of which 

are criminal, some of which are not. No layperson can do more than guess at the extent, 

if any, to which a person predisposed to one kind of deviant sexual conduct may be 

predisposed to another kind of deviant sexual conduct, criminal or otherwise. Is one who 

commits an act of necrophilia (Health & Saf. Code, § 7052) more likely than a randomly 

selected person to commit an act of rape? Child molestation? Indecent exposure? Is a 

pedophile more likely than a rapist or a member of the public to commit necrophilia? 

Without some evidence on the subject, a jury cannot answer these questions.” (Earle, 

supra, at p. 399, italics omitted.)

To the extent Bonilla interprets Earle as categorically concluding that evidence of 

a defendant’s propensity to commit indecent exposure, without expert testimony, is 

irrelevant to prove the defendant’s propensity to a commit a different sexual offense, we 

disagree with this conclusion. As we shall explain, such conclusion finds no support in 

the plain language of Evidence Code section 1108, its Legislative history, or case law 

interpreting the statute, and is contrary to the purpose of the statute’s enactment.

As set forth above, Evidence Code section 1108 renders admissible in the trial of a 

sexual offense evidence of a defendant’s commission of “another sexual offense”—i.e., a 
11.

crime involving “any of” the enumerated crimes. (Italics added.)5 The Legislature could 

have easily limited the evidence admissible under Evidence Code section 1108 to 

“another similar sexual offense or offenses” had it so intended. Because Evidence Code 

section 1108 does not contain any such limiting language, we must presume that the 

Legislature did not intend such a limitation. (E.g., Soto v. State of California (1997) 56 

Cal.App.4th 196, 202 [rejecting plaintiff's contention that the immunity provided by 

Government Code section 8655 applied only in an emergency: “If the Legislature had 

intended to so limit the scope of the section, we presume it would have said so”].) 

The legislative history of the statute supports our conclusion. The author of 

Evidence Code section 1108 reported: “‘At the hearing before the Judiciary Committee, 

there was discussion whether more exacting requirements of similarity between the 

charged offense and the defendant’s other offenses should be imposed. The decision was 

against making such a change, because doing so would tend to reintroduce the excessive 

requirements of specific similarity under prior law which [Assembly Bill No.] 882 is 

designed to overcome, ... and could often prevent the admission and consideration of 

 

5 Evidence Code section 1108, subdivision (d) defines “‘[s]exual offense’” as a crime that 

involved “[a]ny conduct proscribed by Section 243.4 [sexual battery], 261 [rape], 261.5 

[unlawful sexual intercourse with a minor], 262 [rape of a spouse], 264.1 [rape in concert with 

another], 266c [unlawful sexual intercourse, sexual penetration, oral copulation, or sodomy], 269 

[aggravated sexual assault of a child], 286 [sodomy], 288 [lewd acts on a child under 14 years], 

288a [oral copulation], 288.2 [distributing matter depicting minors engaging in sexual activity], 

288.5 [continuous sexual abuse of a child], or 289 [forcible sexual penetration], or subdivision 

(b), (c), or (d) of Section 311.2 [distributing obscene matter] or Section 311.3 [sexual 

exploitation of a child], 311.4 [employing a minor to distribute obscene matter], 311.10 

[advertising obscene matter depicting a minor], 311.11 [possessing matter depicting minor 

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

minor],” or “[a]ny conduct proscribed by Section 220 of the Penal Code [assault with intent to 

commit rape, sodomy, or oral copulation],” or “[c]ontact, without consent, between any part of 

the defendant’s body or an object and the genitals or anus of another person,” or “[c]ontact, 

without consent, between the genitals or anus of the defendant and any part of another person’s 

body,” or “[d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, 

or physical pain on another person,” or “[a]n attempt or conspiracy to engage in conduct

described in this paragraph.” (Italics added.)
12.

evidence of other sexual offenses in circumstances where it is rationally probative. Many 

sex offenders are not “specialists,” and commit a variety of offenses which differ in 

specific character.’” (Historical and Statutory Notes, 29B pt. 3B West’s Ann. Evid. Code 

(2009 ed.) foll. § 1108, p. 352, italics added.)

In Falsetta, supra, 21 Cal.4th 903, a constitutional challenge to Evidence Code 

section 1108, the California Supreme Court concluded that admitting evidence of a 

defendant’s other sexual offenses does not offend due process because, among other 

things, such offenses are highly relevant to a defendant’s propensity to commit other 

sexual offenses. The court noted that in enacting Evidence Code section 1108, the 

Legislature had expanded the admissibility of disposition or propensity evidence in sex 

offense cases “to assure that the trier of fact would be made aware of the defendant’s 

other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Falsetta,

at p. 911.) Such expansion was appropriate because of the relevance of the other offense 

evidence: “Although defendant disputes the point, the case law clearly shows that 

evidence that he committed other sex offenses is at least circumstantially relevant to the 

issue of his disposition or propensity to commit these offenses. As noted in [People v.] 

Alcala [(1984) 36 Cal.3d 604], ‘Such evidence’ is [deemed] objectionable, not because it 

has no appreciable probative value, but because it has too much.”’” (Falsetta, supra, at 

p. 915, some italics omitted.)

In People v. Loy (2011) 52 Cal.4th 46 (Loy), the California Supreme Court 

expanded its holding in Falsetta to permit the introduction of evidence of prior sexual 

offenses under Evidence Code section 1108 even where the defendant contended that the 

prior and charged crimes were not similar and, therefore, the commission of the first was 

not probative of the defendant’s propensity to commit the second. In Loy, the defendant 

was convicted of the 1996 murder (while engaged in a lewd and lascivious act) of his 12-

year-old niece. At trial, the prosecution presented evidence that in 1975 and again in 

1981, the defendant had been convicted of rape, oral copulation, and sodomy of two 
13.

women, ages 16 and 32. (Loy, at pp. 54–55.) The defendant contended the trial court 

erred in admitting this evidence because the prior crimes—raping two women to whom 

he was not related—were not similar to the charged crime, murdering his 12-year-old 

niece.

The Loy court disagreed, explaining that, even if the crimes were not similar, that 

fact “is not dispositive. Before [Evidence Code] section 1108 was enacted, Evidence 

Code section 1101 governed the admission of prior criminal conduct, and a body of law 

developed concerning how similar the prior conduct had to be to the charged crime; the 

required degree of similarity varied depending on the use for which the evidence was 

offered. [Citation.] ‘All of that radically changed with respect to sex crime prosecutions 

with the advent of section 1108.... [S]ection 1108 now “permit[s] the jury in sex offense 

... cases to consider evidence of prior offenses for any relevant purpose” [citation], 

subject only to the prejudicial effect versus probative value weighing process required by 

[Evidence Code] section 352.’ [Citation.] ‘In enacting Evidence Code section 1108, the 

Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex 

crimes prosecutions it is presumed admissible without regard to the limitations of 

Evidence Code section 1101.’ [Citation.] Or, as another court put it, ‘[t]he charged and 

uncharged crimes need not be sufficiently similar that evidence of the latter would be 

admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 

would serve no purpose. It is enough the charged and uncharged offenses are sex 

offenses as defined in section 1108.’” (Loy, supra, 52 Cal.4th at p. 63, last sentence 

italics added.) Thus, although the defendant’s previous sexual offenses may not have 

been sufficiently similar to be admissible under Evidence Code section 1101, they 

nonetheless were admissible under Evidence Code section 1108. (Loy, at p. 63; see 

People v. Story (2009) 45 Cal.4th 1282, 1293 [prior sexual offense evidence is 

“particularly probative” in sex cases].)
14.

Furthermore, requiring expert testimony to establish the relevance of different 

sexual offenses to one another in every case would undermine Evidence Code 

section 1108’s underlying policy of making evidence of other sexual offenses more easily 

admissible in subsequent sexual offense prosecutions. As our Supreme Court has 

explained, Evidence Code section 1108 “was intended in sex offense cases to relax the 

evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure 

that the trier of fact would be made aware of the defendant’s other sex offenses in 

evaluating the victim’s and the defendant’s credibility.” (Falsetta, supra, 21 Cal.4th at 

p. 911, italics added.) The “Legislature’s principal justification for adopting [Evidence 

Code] section 1108 was a practical one: By their very nature, sex crimes are usually 

committed in seclusion without third party witnesses or substantial corroborating 

evidence. The ensuing trial often presents conflicting versions of the event and requires 

the trier of fact to make difficult credibility determinations. Section 1108 provides the 

trier of fact in a sex offense case the opportunity to learn of the defendant’s possible 

disposition to commit sex crimes.” (Id. at p. 915.)

Under the above authorities, Evidence Code section 1108 plainly applies in the 

present case. Bonilla’s uncharged act of indecent exposure (§ 314) and the charged 

conduct of rape (§ 261) and commission of lewd acts (§ 288) are conduct within the 

express language of the statute (Evid. Code, § 1108, subd. (d)). Therefore, the evidence 

was presumptively probative. Moreover, the uncharged and charged crimes have 

important similarities. As Bonilla acknowledges, they occurred close in time and 

involved a common victim. Based on Bonilla’s behavior of “flashing” his penis and 

masturbating in front of her, L.J. perceived he was deliberately harassing her. The 

uncharged offense was probative of Bonilla’s propensity to subject young girls to 

unwanted criminal sexual activities. Bonilla’s commission of the uncharged offense was

relevant and probative to the present case and therefore the trial court did not err in 

finding the indecent exposure evidence admissible under Evidence Code section 1108. 
15.

Nor did the trial court err in concluding that the probative value of the uncharged 

sexual offense was not outweighed by its prejudicial effect under Evidence Code 

section 352. We disagree with Bonilla’s assertion that the prejudicial effect of the 

indecent exposure evidence was substantial and likely to lead the jury to convict him for 

being a “pervert” rather than basing its verdict on the strength of the evidence. 

Moreover, Bonilla’s argument that the indecent exposure evidence should have been 

excluded as unduly prejudicial is largely based on his claim that it lacked probative value, 

which we have already rejected for reasons discussed above. The trial court did abuse its 

discretion in finding the evidence of Bonilla’s uncharged sexual offense admissible under 

Evidence Code sections 1108 and 352.6

D. Sentencing Error

Bonilla contends, the People concede, and we agree that the 25-year-to-life term 

the trial court imposed for his rape conviction (count 2) under the One Strike law 

(§ 667.61) violates the ex post facto clauses of the United States and California 

Constitutions because it imposed a greater punishment for his offense than was 

authorized by law when the offense was committed. 

The One Strike law originally went into effect on November 30, 1994. (People v. 

Alvarez (2002) 100 Cal.App.4th 1170, 1178.) The indeterminate life terms prescribed by 

section 667.61 “greatly exceed the determinate sentences previously available for 

violations of section 288 [and other sexual offenses.]” (People v. Hiscox (2006) 136 

Cal.App.4th 253, 257.) “Both the California and United States Constitutions proscribe ex 

post facto laws. (U.S. Const., art. I., § 10; Cal. Const., art. I, § 9.) The federal and state 

prohibitions against ex post facto laws apply to any statute that punishes as a crime an act 

previously committed which was not a crime when done or that inflicts greater 

 

6 Because we conclude that the trial court did not err in admitting the uncharged sexual 

offense evidence, we reject Bonilla’s related claim that the error was prejudicial. The admission 

of the evidence did not violate his right to due process and a fair trial.
16.

punishment than the applicable law when the crime was committed.” (Alvarez, at 

p. 1178, fn. omitted.) “[I]t is the prosecution’s responsibility to prove to the jury that the 

charged offenses occurred on or after the effective date of the statute providing for the 

defendant’s punishment. When the evidence at trial does not establish that fact, the 

defendant is entitled to be sentenced under the formerly applicable statutes even if he 

raised no objections in the trial court.” (Hiscox, at p. 256.)

In sentencing Bonilla to a 25-year-to-life term on count 2, the trial court 

apparently relied on section 667.61, subdivision (j)(2), which provides: “Any person 

who is convicted of an offense specified in subdivision (c) under one of the 

circumstances specified in subdivision (e), upon a victim who is a child under 14 years of 

age, shall be punished by imprisonment in the state prison for 25 years to life.” (Italics 

added.) As the parties observe, this sentencing provision did not go into effect until 

September 9, 2010, as part of the “Chelsea King Child Predator Prevention Act of 2010” 

popularly known as “Chelsea’s Law.” (§ 667.61, as amended by Stats. 2010, ch. 219, § 1 

et seq.)

Because the evidence at trial established that the qualifying offense for the 

multiple victim enhancement allegation in count 2 occurred prior to September 9, 2010, 

the effective date of section 667.61, subdivision (j)(2), it is appropriate to remand the 

matter for resentencing under the law in effect at the time of Bonilla’s offenses.7

 

7 We have considered and rejected the People’s claim that it is unnecessary to remand the 

matter for resentencing and that this court should correct the sentencing error on its own. 

Because resentencing is required, the People may, on remand, address to the trial court their 

claim that the trial court should have used Bonilla’s lewd act conviction in count 1 as a basis for 

imposing the 25-year-to-life multiple victim enhancement because, unlike in the case of count 2, 

the applicable provision of the One Strike law was in effect at the time of his commission of the 

offense in count 1.
17.

III.

DISPOSITION

The judgment of conviction is affirmed but Bonilla’s sentence is vacated and the 

matter is remanded for resentencing under the law in effect at the time Bonilla committed 

his offenses. The amended abstract of judgment shall be rendered to reflect application 

of the correct sentencing provisions and forwarded to the appropriate authorities.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

POOCHIGIAN, J.

_____________________

FRANSON, J.