P. v. Mullicane

Filed 4/18/07 P. v. Mullicane CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert Martinez, Judge. Affirmed as modified.

Susan K. Keiser under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Michael Stewart Mullicane appeals from a conviction of child molestation with substantial sexual contact with the victim. He makes several evidentiary challenges regarding the admission of his statement to a detective, the admission of evidence regarding his prior offenses, and the exclusion of the victims school performance record. In addition, he contests the amount of the restitution fine. As mandated by statute, we reduce the restitution fine to $10,000, modify the parole revocation fine to the same amount, and otherwise affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. FACTS

A. The Underlying Offense

In 2005, Melinda C. met Mullicane through a telephone dating service for single parents. Mullicanes taped message stated that he was a father of 3 kids, an engineer with a great schedule, and believed kids are just the joy of the world.

After a few dates, Melinda brought her two children, 14-year-old Anthony and 10-year-old Amanda, to Mullicanes home. During the visit, Mullicane showered attention on Amanda, picking her up constantly. The children swam with Mullicane in his pool before dinner.

Between dinner and dessert, Mullicane told the children to take a bath. The children bathed in separate bathrooms. In Amandas bathroom, Mullicane initially turned on the water and left her alone, whereupon Amanda undressed and stepped into the bathtub. Unable to turn off the faucet and afraid the bathwater would overflow, Amanda called for her mother. Mullicane appeared, turned off the water, and told Amanda to wash herself as he watched. He then washed Amandas back, and rubbed her buttocks and vaginal area. Meanwhile, Melinda did her laundry and was unaware that Amanda was taking a bath. By the time Melinda entered the bathroom, Mullicane was no longer touching Amanda. Dismayed to find Mullicane there with her naked daughter, Melinda scolded him: Shes ten. She knows how to take a shower by herself. . . [] . . . [] . . . What the hell are you doing? . . . Youre too much. Im not comfortable with it. And you need to stop.

Mullicane then served Amanda ice cream and asked her to keep the bathroom incident a secret. Amanda complied, because she was afraid of her mother and did not want Melinda to stop seeing Mullicane.

Before leaving that evening, Melinda mentioned that she was going to buy Amanda her first bra, whereupon Mullicane insisted on taking them shopping. Melinda adamantly refused to have him along. Because Melindas gas tank was nearly empty, Mullicane offered to pay for gas and followed in his own car. However, instead of stopping at the several ATMs or gas stations they passed, he followed Melinda and the children to Target where the family was going to shop. Melinda turned back stating, No. You know, what part of that didnt you understand? Mullicane then paid for gas.

Days later, while Melinda was shopping with Amanda, Mullicane called Melinda on her cell phone and disclosed that he had been a sex offender with children. Melinda immediately asked Amanda whether anything had happened at Mullicanes house. Amanda would not tell her mother. Melinda later took Amanda to a social worker, who learned that Mullicane had touched Amanda.

B. Prior Offenses

In 1977, Mullicane met seven-year-old Y.M.J. and her sister at a public swimming pool. While horseplaying with the children, Mullicane rubbed Y.M.J.s vaginal area under her bathing suit. Mullicane convinced Y.M.J. to follow him to his car allegedly to get an inner tube. Once inside his car, he again touched Y.M.J.s vagina. Y.M.J. confided in her sister, who advised her not to report the incident to their mother for fear she would ban them from the pool. After the swimming season was over, Y.M.J. told her mother.

In 1981, Mullicane coached a boys baseball team. He took two brothers, 12-year-old Oscar and 14-year-old Humberto G., to the Showboat, a water slide amusement park, and for an overnight stay at his home. Mullicane told the boys to shower and stayed in the room to watch. He touched Oscars penis and Humbertos body. Mullicane shared a bed with the boys. In the night, he touched Oscars body and rubbed his own penis against Humbertos buttocks. The boys reported the incident to their mother the next day.

In 1982, Mullicane took two other boys he coached, 13-year-old Anthony L. and another boy, to a baseball game and sleepover at his home. Mullicane shared a bed with Anthony L. In the night, Mullicane rubbed Anthony L.s penis and placed the boys hands on Mullicanes erect penis, which he then placed on Anthony L.s buttocks.

Later that year, Mullicane offered Anthony L. and his 11-year-old cousin Raymond a ride. Anthony L. did not want to go with Mullicane but his cousin insisted. Mullicane took the boys to the Showboat and to his apartment. Mullicane told the boys to shower, showed them how to turn on the water, and stayed to watch. After dinner and a movie, Mullicane made the boys sleep with him on his waterbed. Mullicane again touched Anthony L.s penis and Raymonds chest. After Anthony L. left to use the bathroom, the boys went to sleep in another room. Mullicane followed and continued to rub the boys and touch Anthony L.s genitals. In the morning, Mullicane gave the boys money. Anthony L. informed his aunt of the incidents.

That same year, Mullicane invited 12-year-old Anthony M. and another boy he coached for a swim and sleepover at this home. After the swim, Mullicane asked the boys to take a shower. The boys slept with Mullicane on his waterbed. In the night, Anthony M. was awakened when Mullicane rubbed Anthony M.s penis under his boxer shorts. A week later, Anthony M. told his father about the incident.

In 1996, federal agents conducted search warrants at Mullicanes residence and workplace. The agents found Mullicane possessed multiple images of child pornography. Mullicane admitted that he had transmitted these images over the internet since 1995.

II. PROCEDURE

A. The Arrest

Detective Michael Henderson arrested Mullicane pursuant to an arrest warrant. A search of Mullicanes home found notes from the phone chat line about several women and their children.

At the time of his arrest and booking into jail, Mullicane neither asked for his counsel nor showed he was unwilling to speak to the police.

Because Detective Henderson was about to execute a search warrant on Mullicanes workplace and did not want him to alert anyone, the detective directed jailer Lydia Rodriguez to disallow phone calls by Mullicane, but did not restrict calls to his lawyer. Thus, when Mullicane asked the jailer when he could make phone calls, the jailer told him he could do so after he spoke to the detective. The detective believed Rodriguez would have notified him if Mullicane had wanted to speak to his attorney.

B. The Waiver

Returning to the jail after conducting the search warrant, Detective Henderson read Mullicane his rights under Miranda v. Arizona (1966) 384 U.S. 436. Detective Henderson knew that Mullicane had retained counsel, because counsel had sent a letter two weeks earlier advising the detective that he had been retained by Mullicane and asking that his client not be questioned outside the presence of counsel. The detective also knew that Mullicane had been arrested before and had prior experience with the criminal justice system.

Mullicane stated he understood his rights, expressly waived them orally and in writing, neither invoked his right to counsel nor his right to remain silent, and proceeded with the interview, which was both video- and audio-taped. Later, he telephoned his mother, lawyer and ex-spouse.

C. The Interview and Extra-Judicial Statement

In his custodial interview with Detective Henderson, Mullicane admitted that he had washed Amanda but denied that he had touched her inappropriately. However, when asked about his prior sex offenses, Mullicane stated, Its not a mistake. . . Ive used other peoples children to satisfy my sexual desires.

D. The Information

The information charged Mullicane with one count of a lewd act upon a child (Pen. Code,[1] 288, subd. (a)) with the allegation that he had substantial sexual contact with the victim ( 1203.66, subd. (a)(8)). It was further alleged that Mullicane had one prior conviction of committing a lewd act upon a child ( 667.61, subds. (a), (d)), 23 prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) a)(1)), 19 serious felony convictions ( 667, subd (a)(1)), and two prior sex offense convictions ( 667.6, subd. (a)).

E. Admission of Extra-Judicial Statements

At the preliminary hearing, Mullicane sought to dismiss the complaint or, in the alternative, to exclude Mullicanes extra-judicial statements made to Detective Henderson upon his arrest. The trial court denied Mullicanes motion.

F. Admission of Prior Offenses

Prior to trial, the prosecution moved to admit Mullicanes prior offenses. The trial court determined that evidence regarding Mullicanes prior offenses involving children was admissible under Evidence Code sections 1101 and 1108. It found the prejudicial effect of the evidence was substantially outweighed by its probative value.

G. Exclusion of Amandas Math Grades

During the preliminary hearing, Amanda testified that one of her favorite subjects was math. At trial, the prosecution moved to exclude Amandas failing math grades on the ground the evidence was more prejudicial than probative. The court excluded the proffered evidence.

H. The Verdict

A jury convicted Mullicane as charged with one count of a lewd act upon a child ( 288, subd. (a)) and found true that he had substantial sexual contact with the victim ( 1203.66, subd. (a)(8)). The court found true all alleged prior convictions.

I. The Sentence

The trial court denied probation and imposed under the Three Strikes Law a sentence of 25 years to life, tripled, plus five years each for three of the prior serious felony convictionsa total of 90 years to life. Striking enhancements for the remaining prior conviction allegations, the court ordered Mullicane to pay $18,000 in restitution ( 1202.4, subd. (b)), a parole revocation fine of $5,000 ( 1202.45) that was suspended, and a $30 court security fee ( 1465.8, subd. (a)(1)). Mullicane received a credit of 210 days of presentence custody.

Mullicane timely appealed.

DISCUSSION

Mullicane makes several evidentiary challenges regarding the admission of his statement to a detective, the admission of evidence regarding his prior offenses, and the exclusion of the victims school performance record. In addition, he contests the amount of the restitution fine.

I. The trial court did not err IN admitting mullicanes

statement

Mullicane contends the court erred by admitting his involuntary extra-judicial statements to Detective Henderson in contravention of his Fifth Amendment privilege against self-incrimination, Sixth Amendment right to counsel, and the due process clause of the Fourteenth Amendment. In addition, he contends he was denied a telephone call after his arrest in violation of section 851.5.

A. The Constitutional Claims

It has long been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. (People v. Neal (2003) 31 Cal.4th 63, 79.) To realize this right, and in recognition of the fact that any statement obtained from a criminal suspect by a law enforcement officer during custodial interrogation is potentially involuntary because such questioning may be coercive, (ibid.), the United States Supreme Court ruled that prior to custodial interrogation, law enforcement officers must advise individuals concerning their rights, including the right to counsel and to remain silent. (Miranda v. Arizona, supra, 384 U.S. at p. 444.)

When a defendant invokes the privilege against self-incrimination and the right to counsel, law enforcement officers are constitutionally obligated to refrain from further interrogation until the defendants counsel is present or until the defendant initiates a discussion of the subject of the interrogation and waives his or her Miranda rights. (Miranda, supra, 384 U.S. at p. 474; and Edwards v. Arizona (1981) 451 U.S. 477, 485 (Edwards) [it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel].) The Supreme Court has stated that an accused . . . having expressed a desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Edwards, supra, at pp. 484-485.)

Whether a defendants constitutional rights were violated, whether any initiation of conversation was voluntary and uncoerced, and whether the defendant voluntarily, knowingly and intelligently waived the right to counsel are reviewed de novo based on the facts found by the trial court. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Storm (2002) 28 Cal.4th 1007, 1022-1023.) On appeal, the determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety, including all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation [citations]. (People v. Benson (1990) 52 Cal.3d 754, 779, see also People v. Mickey (1991) 54 Cal.3d 612, 649 [Determinations as to the voluntariness of a statement for both the federal and state constitutional guaranties of due process of law

which is a resolution of a mixed question of law and fact that is nevertheless predominantly legalare reviewed independently].)

Here, notwithstanding the letter from Mullicanes counsel announcing that he had retained counsel, Mullicane neither asked to have his counsel present nor elected to remain silent during his arrest and custody. The admonition to the jailer that Mullicane should make no calls during the execution of the search warrant was limited in time and scope as to the accuseds workplace, but not as to his lawyer. Even if the instructions to the jailer had been unclear, when Detective Henderson subsequently read Mullicane his Miranda rights, Mullicane stated he understood his rights, expressly waived them both orally and in writing, neither invoked his right to counsel nor his right to remain silent, and proceeded with an interview that was both video- and audio-taped. Moreover, because Mullicane had numerous prior arrests and convictions, his waiver was unlikely to have been a consequence of inexperience or misunderstanding.

B. The Section 851. 5[2]Claim

Mullicane argues that the denial of his statutory right under section 851.5 to make a telephone call requires suppression of his statements. It is settled that a statutory violation followed by a voluntary admission requires a different sanction than a constitutional violation resulting in the obtaining of incriminating evidence. (See Rogers v. Superior Court (1955) 46 Cal.2d 3, 10 [contrasting the difference in the essential connection between evidence seized after a Fourth Amendment violation and voluntary statements made when the defendant is denied a timely arraignment as defined by section 825].) The question that arises with a violation of section 851.5 is whether the defendant has been denied a fair trial or otherwise suffered prejudice as a result of a denial of the statutory right. In In re Newbern (1961) 55 Cal.2d 500, an arrestee was denied the right to call a bail bondsman. The Supreme Court found the denial of the right to make the telephone call amounted to a denial of the right to bail. Nevertheless, the court said, there is no relief to which the petitioner is now entitled. There is no sufficient showing in this case that the denial of the right to call a bail bondsman resulted in the denial of a fair trial or prevented the petitioner from obtaining and presenting evidence of his innocence . . . . (Id. at p. 507.)

Mullicanes bare assertion that the detective initially refused his request to use the telephone does not in and of itself render his statements involuntary. (People v. Moreland (1971) 15 Cal.App.3d 269, 275, [rejecting a similar claim and also commenting that an accused is not guaranteed the absolute right to timely use of a telephone, and that read in its entirety, section 851.5 recognizes that particular circumstances may properly be weighed in balance with the rights guaranteed the accused]; compare, McCormick v. Municipal Court (1961) 195 Cal.App.2d 819, 824, [drunk driving prosecution dismissed where the arrestee made repeated requests to have officers call his doctor so he could secure a blood sample, and no telephone call was made and no blood sample was ever procured by the arrestee or the police].)

The authorities Mullicane cites do not support his claim that suppression is required here. (People v. Locke (1984) 152 Cal.App.3d 1130, 1133 [statements of a defendant should have been excluded at trial as they were taken in violation of Miranda where defendant told the police officers in response to a Miranda advisement that she wished to speak to an attorney before questioning, and she was not told of her right to use the telephone for the purpose of securing an attorney]; Carlo v. City of Chino (9th Cir. 1997) 105 F.3d 493, 499 [in an action in federal court pursuant to 42 U.S.C. 1983, refusal of an official to permit a state arrestee to make a telephone call after a driving under the influence arrest can establish a claim under 42 U.S.C. 1983 on the theory that section 851.5 creates a liberty interest that is protected as a matter of due process].)

The lack of a remedy for the statutory violation does not preclude Mullicane from arguing that the telephone restriction is one circumstance surrounding his statement that demonstrates involuntariness. (See People v. Reid (1965) 233 Cal.App.2d 163, 181 [making the distinction that the statutory violation may be considered as part of the inquiry under Miranda, but by itself and without a denial of due process, it has no effect on a criminal proceeding].) However, in this case, the trial court found there was nothing to indicate that the jailer was on notice that the inquiry about the phone call was for the purpose of contacting counsel, and that he never communicated that that was his intention. Under these circumstances, we find the trial court properly found that Mullicane waived his constitutional and section 851.5 rights and admitted his statement to the detective.

II.                 The trial court did not COMMIT PREJUDICIAL ERROR IN admitting EVIDENCE OF PRIOR SEX OFFENSES

mullicane contends the trial court erred in admitting evidence of his prior sex offenses pursuant to Evidence Code section 1101[3]and 1108.[4]

Evidence of a prior sex offense is relevant to show the defendants propensity to engage in the charged crimes and, on that basis, is admissible subject to an evaluation of undue prejudice under Evidence Code section 352. (Evid. Code, 1108; People v. Falsetta (1999) 21 Cal.4th 903, 907, 916-917; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.)

The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638; accord People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

In People v. Falsetta, supra, 21 Cal.4th at p. 917, the court explained that in weighing probative value against prejudicial effect, the court must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.

Here, the trial court was within its discretion in admitting Mullicanes prior sexual offenses. The prior sex offenses tended to show motive, intent, common scheme or plan, and absence of mistake or accident. As the court observed, the prior offenses were similar to the underlying offense. Mullicane arranged to be alone with the children. The touching occurred during or after swimming, bathing or showering. Mullicane paid or gave the children treats afterwards. The children tended to keep the incidents a secret from their families. Even though some of the prior offenses took place two and three decades ago, they tend to show Mullicanes continuous and unchanging pattern of sexual interest in children. Thus, the prior offenses were highly probative and substantially overweighed any potential prejudice.

Because Amandas testimony was consistent with the evidence of Mullicanes prior offenses, it is not reasonably probable that the jury would have reached another verdict. Thus, were there any error in admitting the evidence, it was not prejudicial and was harmless beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People v. Watson (1956) 46 Cal.2d 818, 836.)

III.               THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE REGARDING

AMANDAS MATH GRADES

Mullicane contends that the trial court erred in excluding as irrelevant evidence of Amandas failing math grades, because she had testified that math was one of her favorite subjects. Evidence of her bad grades could have been used to question her credibility as a witness. He asserts that by its holding, the trial court violated his rights to due process, to present a defense, and to confront witnesses.

At trial, finding Mullicane failed to show how the evidence was related to her credibility, the trial court held evidence of Amandas performance in math class was inadmissible. The court explained that testimony had already been presented to discredit Amanda, and Mullicane could call witnesses to testify about Amandas credibility.

The general rule remains that the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834.) (People v. Lawley (2002) 27 Cal.4th 102, 155, fn. omitted.)

In our view, the trial court properly exercised its discretion in finding that Amandas performance in math class had no bearing on her credibility. Accordingly, its exclusion of that evidence was proper.

IV.               THE RESTITUTION FINE IS REDUCED TO $10,000 AND THE PAROL REVOCATION FINE IS MODIFIED TO $10,000

At sentencing, the trial court imposed a restitution fine of $18,000. Section 1202.4, subdivision (b)(1), provides: The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . . ( 1202.4, subd. (b)(1), emphasis added.) Mullicane contends the court erred in imposing a restitution fine higher than the $10,000 maximum. The People agree with Mullicanes request. We accept the Peoples concession and reduce the restitution fine to $10,000.

However, the People also contend that the courts imposition of the $5,000 parole revocation fine failed to comply with statutory requirements. Section 1202.45 provides that [i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the persons parole is revoked. Parole revocation restitution fine moneys shall be deposited in the Restitution Fund in the State Treasury. ( 1202.45, emphasis added.)

DISPOSITION

The judgment is modified to reduce the restitution fine to $10,000 and to increase the stayed parole revocation fine to the same amount. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Unless otherwise provided, all statutory references are to the Penal Code.

[2] (a) Immediately upon being booked, and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as described in subdivision (b). [] The arrested person shall be entitled to make at least three calls at no expense if the calls are completed to telephone numbers within the local calling area. [] (b) At any police facility or place where an arrestee is detained, a sign containing the following information in bold block type shall be posted in a conspicuous place: [] That the arrestee has the right to free telephone calls within the local dialing area, or at his or her own expense if outside the local area, to three of the following: [] (1) An attorney of his or her choice or, if he or she has no funds, the public defender or other attorney assigned by the court to assist indigents, whose telephone number shall be posted. This telephone call shall not be monitored, eavesdropped upon, or recorded. [] (2) A bail bondsman. [] (3) A relative or other person. [] (c) If, upon questioning during the booking process, the arrested person is identified as a custodial parent with responsibility for a minor child, the arrested person shall be entitled to make two additional calls at no expense if the calls are completed to telephone numbers within the local calling area to a relative or other person for the purpose of arranging for the care of the minor child or children in the parents absence. [] (d) These telephone calls shall be given immediately upon request, or as soon as practicable. [] (e) This provision shall not abrogate a law enforcement officers duty to advise a suspect of his or her right to counsel or of any other right. [] (f) Any public officer or employee who willfully deprives an arrested person of any right granted by this section is guilty of a misdemeanor. ( 851.5.)

[3] Evidence Code section 1101 provides: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

[4] Evidence Code section 1108 provides: (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. [] . . . [] (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code. [] (d) As used in this section, the following definitions shall apply: [] (1) Sexual offense means a crime under the law of a state or of the United States that involved any of the following: [] (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code. [] (B) Any conduct proscribed by Section 220 of the Penal Code, except assault with intent to commit mayhem. [] (C) Contact, without consent, between any part of the defendants body or an object and the genitals or anus of another person. [] (D) Contact, without consent, between the genitals or anus of the defendant and any part of another persons body.