Filed 4/12/17 P. v. Ordaz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS ORDAZ,

Defendant and Appellant.
D071095



(Super. Ct. No. RIF1204423)

ORDER MODIFYING OPINION
AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:
It is ordered that the opinion filed herein on March 16, 2017, be modified as follows:
1. On page 7, in the final line, replace "[Jane Doe's]" with "[Jane Doe 1's]."
2. On page 28, in the second line, replace the word "witnesses" with "people who were commonly in the residence."
3. On page 28, in the third line, after the sentence ending "suspected abuse," add a new footnote number 35 that states the following:
As discussed in part II.A.1.b, ante, one of Jane Doe 1's friends, April C., testified that she saw Ordaz "squeeze[ ] [Jane Doe 1's] butt" on one occasion.
4. On page 28, in the ninth line, after the word "abuse," insert the words "to a parent."
5. On page 28, renumber footnote 35 to footnote 36.
6. On page 28, immediately preceding the paragraph beginning, "Under these circumstances," insert the following as a new paragraph:
Finally, in a petition for rehearing, the People contend that any error in admitting evidence of Ordaz's commission of the uncharged indecent exposure offense was harmless because the trial court instructed the jury pursuant to CALCRIM No. 1191 that the jury was to disregard the uncharged offense evidence entirely if the People had not met their burden of proving the uncharged act by a preponderance of the evidence. As the People acknowledge, case law is clear that "there are instances in which a court's curative instructions or admonitions fail to 'un-ring' a bell. . . ." (See, e.g., People v. Disa (2016) 1 Cal.App.5th 654, 674–675 [concluding trial court committed reversible error in admitting domestic violence propensity evidence even though jury received instructions limiting its use of the evidence because "[t]he limited-use instruction could not erase the image of defendant," committing the uncharged offense]; People v. Guerrero (1976) 16 Cal.3d 719, 730 ["No limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors' minds the picture of defendant's role," in committing uncharged offense].) Where, as in this case, the uncharged offense evidence is highly prejudicial, the prosecutor emphasizes the defendant's purported propensity to commit sexual offenses in closing argument, and the evidence of the defendant's commission of the charged offenses is not overwhelming, the giving of CALCRIM No. 1191 does not establish a lack of prejudice.

The petition for rehearing is denied.
There is no change in the judgment.

McCONNELL, P. J.

Copies to: All parties

Filed 3/16/17 P. v. Ordaz CA4/1 (unmodified version)
NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS ORDAZ,

Defendant and Appellant.
D071095



(Super. Ct. No. RIF1204423)

APPEAL from a judgment of the Superior Court of Riverside County, Michael B. Donner, Judge. Reversed.
Kenneth H. Lewis and Stephen G. Rodriguez for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Allison V. Hawley and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
" 'The rule excluding evidence of criminal propensity is nearly three centuries old in the common law.' " (People v. Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) This is because, as the United States Supreme Court has long recognized, propensity evidence is thought to cause jurors to "prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." (Michelson v. United States (1948) 335 U.S. 469, 475–476 (Michelson).) In modern times, our Legislature has crafted limited statutory exceptions to this ancient common law rule with respect to certain specific crimes, including sexual offenses. (See Evid. Code, § 1108, subd. (a).) However, our Legislature has also adopted "safeguard[s]" (Falsetta, supra, at p. 917) to ensure that these statutory exceptions are not used to inappropriately place propensity evidence before a jury so as to deprive a defendant of a fair trial.
Among these safeguards is that "section 1108 . . . demands that, before the conduct may be admitted, it must amount to a 'crime.' " (People v. Cottone (2013) 57 Cal.4th 269, 282 (Cottone); see § 1108, subd. (d)(1) [defining " 'sexual offense' " as specified violations of the Penal Code].) Moreover, a "trial court must make a preliminary determination of whether the proffered [propensity] evidence is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated [sexual] offense." (People v. Jandres (2014) 226 Cal.App.4th 340, 353 (Jandres).) In making this determination, "the trial court performs a threshold screening function to shield the jury from evidence that is so factually weak as to undermine its relevance." (Cottone, supra, at p. 284.)
In this case, the People charged Jose Luis Ordaz with a series of sexual offenses pertaining to his alleged sexual abuse of his two granddaughters. At trial, over Ordaz's objection, the trial court permitted the People to present evidence of Ordaz's alleged commission of the uncharged offense of indecent exposure pursuant to section 1108. (See Pen. Code, § 314 [stating that "[e]very person who willfully and lewdly . . . 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby," is guilty of an offense].)
On appeal, Ordaz contends that the trial court erred in determining that there was sufficient evidence for the jury to find that he committed the uncharged offense of indecent exposure. We agree. A pretrial section 402 hearing revealed that the People intended to attempt to prove Ordaz's commission of the uncharged indecent exposure offense solely through the testimony of a law enforcement officer whose testimony did not provide a sufficient basis for a rational juror to conclude that Ordaz had committed the offense. Despite the lack of any admissible evidence pursuant to which a rational juror could find that Ordaz committed the uncharged indecent exposure offense, the trial court permitted the officer to testify at trial. The trial court committed clear error in permitting the jury to hear the officer's testimony.
Given the extremely prejudicial character of section 1108 evidence in general (People v. Villatoro (2012) 54 Cal.4th 1152, 1165 (Villatoro) [" '[e]vidence of uncharged offenses "is so prejudicial that its admission requires extremely careful analysis" ' "]), and the fact that this case boiled down to a " 'credibility contest' " between the complaining witnesses and the defense (Jandres, supra, 226 Cal.App.4th at p. 360), we are compelled to conclude that there is a reasonable probability that a result more favorable to Ordaz would have been reached absent the error. (See ibid. [stating that, in cases involving " 'credibility contest' " between complaining parties and the defense, " ' " 'any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial' " ' "].) Accordingly, we reverse and remand for a new trial.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The People's evidence
The People presented evidence that Ordaz molested his two granddaughters, Jane Doe 1 and Jane Doe 2 over a period of several years.
a. Ordaz's sexual abuse of Jane Doe 2
Jane Doe 2 testified that Ordaz began to molest her when she was in fourth grade and that he continued to do so until her senior year in high school. During one incident, which occurred while Ordaz was making a snack in the kitchen, Ordaz grabbed Jane Doe 2 from behind, put his arm across her chest to pull her closer to him, and rubbed her vaginal area over her clothes. According to Jane Doe 2, similar instances happened "regularly." For example, Jane Doe 2 recalled an incident during which Ordaz was with her, a sibling, and a cousin at a pool. While Jane Doe 2 was sitting in Ordaz's lap in the Jacuzzi, Ordaz touched her vagina. Ordaz also touched Jane Doe 2 on her vagina over her clothes on numerous other occasions, including while they were watching television, while she was sitting in a chair at a computer, while she was lying on her aunt's bed, and while she rode next to him in his truck.
Jane Doe 2 also recalled an incident during which Ordaz touched her bare breasts while she was fixing her hair. In addition, Jane Doe 2 stated that on one occasion while she was in high school, Ordaz grabbed her buttocks while she was watching television in her aunt's bedroom. Jane Doe 2 also described incidents during which Ordaz would make her touch his penis over his clothing. Jane Doe 2 also stated that there were times when Ordaz would move his shorts so as to expose his penis to her while he masturbated.
b. Ordaz's sexual abuse of Jane Doe 1
Jane Doe 1 testified that Ordaz began molesting her when she was nine or ten years old and in fourth grade. According to Jane Doe 1, Ordaz continued to molest her until November 2012, when she disclosed the abuse to her father.
Jane Doe 1 described one of the first times that Ordaz molested her. Jane Doe 1 was in Ordaz's bedroom. Ordaz grabbed her and touched her breasts over her clothes. During another instance, Ordaz called Jane Doe 1 into his bedroom, where the two had a conversation. Ordaz then pulled Jane Doe 1 closer to him and touched her breasts, both over and under her clothing. On another occasion, Ordaz came into the bedroom where Jane Doe 1 was watching television, sat close to her, and then touched her breasts over, and then under, her clothes.
Ordaz also touched Jane Doe 1's vagina. On one occasion, Jane Doe 1 came out of the bathroom and Ordaz approached her from behind and started touching her breasts. Ordaz then began touching Jane Doe 1's vaginal area over her clothes. He then unzipped her pants, touched her vagina, and eventually penetrated her vagina with his fingers.
On another occasion, Ordaz came over to Jane Doe 1's residence to fix the locks on the doors. Ordaz started touching her vagina over her clothes, and then put his hand down her pants and penetrated her vagina with his fingers. The penetration hurt Jane Doe 1, and she tried to leave. Ordaz grabbed her back with his free hand and continued the abuse. Ordaz stopped after approximately four minutes when Jane Doe 1 was able to pull away. In total, Jane Doe 1 estimated that Ordaz touched her vaginal area over her clothes approximately 20 times. According to Jane Doe 1, Ordaz touched her vagina skin to skin between five and ten times, and penetrated her vagina approximately three times.
Ordaz also forced Jane Doe 1 to touch his penis. Jane Doe 1 recalled an instance during which Ordaz grabbed her hand and made her start touching his penis, while her grandmother was in the next room. On another occasion, Ordaz grabbed her arm while they were in his room, and forced her to touch his penis. Jane Doe 1 also described one occasion when Ordaz made her touch her own breasts by moving her hands over her breasts.
April C., one of Jane Doe 1's friends, testified that she saw Ordaz "squeeze[ ] [Jane Doe's] butt" in a "sexual" manner on one occasion.
c. Jane Doe 1's disclosures of the abuse
In November 2012, when she was 13 years old, Jane Doe 1 got in trouble for opening a Facebook account using another person's name. Her parents disciplined her in part by requiring that she go directly to Ordaz's house every day after school. During a lengthy emotional telephone call concerning the punishment, Jane Doe 1 disclosed to her father that Ordaz had been sexually abusing her. Jane Doe 1 had previously told April C. and her cousin Julissa Q. that Ordaz had been inappropriately touching her.
d. Jane Doe 2's disclosures of the abuse
Shortly after learning of Jane Doe 1's disclosures, Jane Doe 2 told her mother that Ordaz had also molested her. Jane Doe 2 and her mother notified law enforcement officers about the abuse shortly thereafter.
e. Section 1108 evidence
As discussed in detail in part III.A.5, post, the People presented evidence that Ordaz committed the uncharged offense of indecent exposure (Pen. Code, § 314, subd. (1)) in 1998.
2. The defense
As discussed in greater detail in part III.D.2, post, numerous family members who lived in Ordaz's residence testified on his behalf. Several family members testified that the victims appeared to be comfortable with Ordaz, even during the time period after the molestations were alleged to have begun.
Ordaz's wife testified that on November 13, 2012, the victims' mother came to Ordaz's residence and accused Ordaz of molesting the victims. During cross-examination, Ordaz's wife acknowledged that Ordaz began staying with his mother in Mexico on the night that the alleged victims' accused Ordaz of sexual abuse. However, Ordaz's wife stated that Ordaz was working in San Diego every day throughout November and December 2012, including the days immediately following November 13.
3. Rebuttal evidence
A United States Border Patrol agent testified that records indicated that Ordaz had not entered the United States from Mexico between November 13, 2012 and November 18, 2012.
B. Procedural background
In June 2014, the People charged Ordaz with three counts of aggravated sexual assault of a minor under the age of 14 years (Pen. Code, § 269, subd. (a)(5)) (counts 1, 3, 5), six counts of lewd and lascivious acts by force or fear on a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)) (counts 2, 4, 6, 7, 8, 9), and two counts of felony sexual battery (Pen. Code, § 243.4, subd. (a)) (counts 10 and 11). The People also alleged that Ordaz committed the offenses in counts 1 through 11 upon multiple victims (Pen. Code, § 667.61, subd. (e)(4)). In July 2014, a jury was unable to reach a verdict on the charges, and the trial court declared a mistrial. In August 2015, after a second trial, a jury found Ordaz guilty as charged.
The court sentenced Ordaz to an aggregate term of 140 years to life in state prison, consisting of a term of 15 years to life on each of counts one through nine, the upper term of four years on count 10, and a consecutive one-year term on count 11.
III.
DISCUSSION
The trial court committed reversible error in permitting the People to present
evidence of Ordaz's alleged commission of an uncharged sexual offense

Ordaz claims that the trial court committed reversible error in permitting the People to present evidence of his alleged commission of an uncharged sexual offense pursuant to section 1108. Ordaz contends that the People failed to demonstrate that they could present evidence at trial from which a reasonable juror could find that Ordaz committed the uncharged offense.
A. Factual and procedural background
1. Briefing on the admissibility of the uncharged offense evidence
Prior to trial, Ordaz filed a motion in limine to preclude the People from presenting evidence of his commission of the uncharged crime of indecent exposure (Pen. Code, § 314, subd. (1)) pursuant to section 1108. Ordaz claimed that the court should grant his motion because evidence of the incident giving rise to the uncharged offense was "practically non-existent," among other reasons. In support of this contention, Ordaz noted that no police report of the incident existed, the identities of the individuals who had called the police concerning the incident were unknown, he had never been charged with or convicted of the indecent exposure offense, and the arrest had since been converted to a detention by operation of law.
The People filed a trial brief in which they argued that the evidence was admissible. In describing the evidence that they sought to admit, the People stated:
"On July 17, 1998, [Ordaz] was arrested by . . . Officer A. Pena after a call for service was made by a woman and her young daughter. Officer Pena located the vehicle at issue and initiated an enforcement stop. Upon approaching the defendant's truck, Officer Pena found the defendant in the driver's seat with his penis partially exposed and wearing what appeared to be colorful boxer type shorts. . . . The People only seek to introduce the evidence that Officer Pena observed first hand and do not intend to illicit [sic] any hearsay statements from the witness."

2. Section 402 hearing
The trial court held a section 402 hearing concerning the admissibility of the evidence. At the hearing, California Highway Patrol Lieutenant Antonio Pena testified that, on July 17, 1998 at approximately 7:55 p.m., he received a call for service from a police dispatcher. The call for service involved an alleged incident of indecent exposure. Officer Pena was "told that a victim was following a suspect who had exposed himself to her." Officer Pena pulled over a pickup truck that matched the description of the suspect's vehicle. The woman who had called for service pulled her vehicle in behind Officer Pena's vehicle. The woman's daughter, who appeared to be between eight and ten years old, was also in the woman's vehicle.
Officer Pena approached the pickup truck from the passenger side. A man, later determined to be Ordaz, was sitting in the driver seat. Officer Pena could see that Ordaz was wearing colorful "boxer-style . . . shorts," which were "open in the middle." Pena could see the middle portion of Ordaz's penis through the opening. Pena contacted the complaining party and thereafter arrested Ordaz for indecent exposure.
3. Argument regarding the admissibility of the uncharged offense evidence
The trial court heard extensive argument from both the prosecutor and defense counsel concerning the admissibility of the evidence. During the first day of hearings on the admissibility of the evidence, the court made clear that it would not permit any of the complaining witness's hearsay statements to be admitted at trial. For example, defense counsel stated that "the statements of the woman and the child and the dispatcher, those statements, those statements I submit are not admissible." The court responded, "That's − you are exactly right." Later during the hearing, defense counsel argued, "Witnessing firsthand is one thing. Bringing in hearsay from people that we have no way of contacting, there is no way to defend against it." The court responded, "I agree with you. You can't bring in anything that these women[ ] may or may not have said." In addition, the prosecutor indicated that she did not intend to present evidence that the call for service was for an alleged indecent exposure. The prosecutor also clarified that she did not intend to offer any evidence as to what the woman and her daughter had said. Near the close of the first day of hearings on the issue, the court stated that its tentative ruling would be to admit Officer Pena's testimony insofar as it appeared that the prosecutor intended to limit the evidence to what Officer Pena "saw himself and what he recalls."
During the second day of hearings, defense counsel argued that there was no admissible evidence that Ordaz had exposed himself to either the woman or the girl in the car that had pulled in behind Officer Pena. Defense counsel further argued that there was no evidence that Ordaz had willfully or lewdly exposed himself to Officer Pena. Accordingly, defense counsel argued that, given the lack of evidence that Ordaz had committed a violation of Penal Code section 314, subdivision (1), the trial court was required to perform its role as "gatekeeper and . . . keep it out."
The prosecutor argued that, with respect to the issue of the "uncertainty of the incident," section 1108 "doesn't necessitate a conviction." The prosecutor also argued:
"[T]he other aspect of that particular incident [i.e., the uncharged indecent exposure offense] that is similar to the abuse upon the victims charged in this case is the age of the young girl that Officer Pena observed to be in that vehicle. She appeared to be between the ages of eight and ten, which is also the time frame in which the abuse began with both Jane Doe 1 and Jane Doe 2."

The prosecutor also reaffirmed, "I do not intend to bring in any information that the women[ ] said in regards to what they observed." Nevertheless, the prosecutor contended that the jury should be "able to know that [the woman and her daughter] were in fact the complaining parties." The prosecutor argued that a jury could find that Ordaz committed an offense of indecent exposure based on Officer Pena's observations, stating:
"So what do we have? We have an officer who pulls over a man when he receives a call for service, finds him driving on a highway, which in fact in your vehicle on a public road, is a public place . . . . [¶] If his penis is out, and willfully so, it is in fact a lewd and lascivious act sufficient for [Penal Code section] 314. . . . [¶] The probative value is − is important in that here we have another circumstance outside the scope of that − the victims alleged in this particular case where the defendant is in fact engaging in similar-type conduct. And yes, the officer can say that he observed a woman and a young girl, based on his own observations."

4. The trial court's ruling
The court ruled that the evidence was admissible, stating in relevant part:
"And so here is the way I look at this. [Section] 1108 does not, as [the prosecutor] correctly pointed out, require a conviction. It's evidence of the commission of another sexual offense. And specifically identified in [section 1108] is a [Penal Code section] 314 violation. [¶] In this instance, it is a situation where we have a [officer] . . . who has a memory of some things, and a lack of memory of others. [¶] But the memories that you do have . . . is that he approached a pickup truck, that within that pickup truck was a man in boxer-type shorts with his penis exposed. [¶] That there was a car behind his truck containing a woman and an eight- to ten-year-old girl. [¶] And we have a situation where he arrested [Ordaz] for a violation of Penal Code [s]ection 314. [¶] And so it is something that's going to the weight of the evidence, as opposed to its admissibility. . . . [¶] But the fact is[,] is that there is sufficient evidence, albeit not perhaps as solid an 1108 case as people have seen in other situations, but there is sufficient evidence, factual evidence, for a jury to make a factual determination."

The court also ruled that the evidence would not be excluded pursuant to section 352.
5. Officer Pena's trial testimony
Officer Pena testified that he received a police dispatcher's call for service at approximately 7:55 p.m. on July 17, 1998. In response to the call, Pena stopped a black pickup truck that was travelling on the highway. A car pulled in behind Officer Pena that contained a woman and a girl. The girl was approximately 10 years old.
Officer Pena approached the black pickup truck from the passenger side. Officer Pena made contact with the driver, a man later determined to be Ordaz, through either the open passenger front door or window. As Pena advised Ordaz of the reason for the stop, Officer Pena observed that Ordaz was "wearing . . . colorful boxer-type shorts." Officer Pena also observed that Ordaz's penis was "partially exposed," meaning that he could see a portion of Pena's penis through the " 'unbuttoned or unzipped' . . . fly area . . . of the boxer shorts." Officer Pena did not recall if Ordaz was wearing pants. After this contact with Ordaz, Officer Pena made contact with the woman and the girl who were traveling in the car that had pulled in behind him. Pena confirmed that the woman and the girl were the complaining parties.
B. Governing law and standard of review
1. The admissibility of evidence under section 1108
As discussed in part I, ante, section 1108 constitutes a "narrow exception" to the general prohibition against admitting character evidence to prove criminal disposition or propensity. (Cottone, supra, 57 Cal.4th at p. 285.)
Section 1108, subdivision (a) provides:
"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.[ ]"

Section 1108, subdivision (d)(1) provides in relevant part:
" '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 . . . [Penal Code] Section . . . 314."

In Jandres, supra, 226 Cal.App.4th at p. 353, the court outlined the law governing a trial court's determination of whether there is sufficient evidence of a defendant's commission of an uncharged sexual offense to present such evidence to a jury pursuant to section 1108:
"[T]he admissibility of uncharged conduct pursuant to section 1108 turns on the existence of a preliminary fact—namely, that the uncharged conduct constitutes a statutorily enumerated 'sexual offense.' [Citation.] The trial court must make a preliminary determination of whether the proffered evidence is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated offense. [Citations.] 'The court should exclude the proffered evidence only if the "showing of preliminary facts is too weak to support a favorable determination by the jury." ' "

The Jandres court also outlined the standard of review to be applied by an appellate court in reviewing a trial court's determination of this issue:
" 'The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion.' [Citation.] Accordingly, we review the trial court's determination of this preliminary fact under the abuse of discretion standard." (Jandres, supra, 226 Cal.App.4th at p. 353.)

2. The offense of indecent exposure
Penal Code section 314 provides in relevant part:
"Every person who willfully and lewdly . . . 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . [¶] . . . is guilty of a misdemeanor."

Numerous courts have interpreted this statutory language since its initial enactment in 1872. With respect to the statutory requirement that the defendant "expose[ ] his person, or private parts thereof," (Pen. Code, § 314, subd. (1)), this court has concluded that "the specific intent to expose one's [naked] genitals . . . is an essential element of the indecent exposure offense." (People v. Massicot (2002) 97 Cal.App.4th 920, 922.)
More generally, " 'a conviction for indecent exposure requires proof of two elements: "(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby." ' " (People v. Honan (2010) 186 Cal.App.4th 175, 181 (Honan); see also Nunez v. Holder (9th Cir. 2010) 594 F.3d 1124, 1130 [stating that Pen. Code, § 314, subd. (1) "prohibits: (1) sexually motivated exposure of one's private parts; (2) in a public place or a place where others are present"].)
California law is clear that in order to violate Penal Code section 314, subdivision (1), a defendant must harbor a sexual intent. (See In re Smith (1972) 7 Cal.3d 362, 366 (Smith) [reviewing case law and stating "the rule clearly emerges that a person does not expose his private parts 'lewdly' within the meaning of [Penal Code] section 314 unless his conduct is sexually motivated"].) In Smith, the Supreme Court interpreted Penal Code section 314 as requiring "that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront." (Smith, supra, at p. 366.) Thus, the Smith court concluded that an "act of sunbathing in the nude on an isolated beach, without intent to engage in sexual activity" does not constitute a violation of Penal Code section 314, subdivision (1). (Smith, at pp. 363–364.) The Smith court reasoned in part:
"The necessary proof of sexual motivation was not and could not
have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual 'activity.' [Citations.] Absent additional conduct intentionally directing attention to his genitals for sexual purposes, a person, as here, who simply sunbathes in the nude on an isolated beach does not 'lewdly' expose his private parts within the meaning of section 314." (Id. at p. 366.)

In the wake of Smith, California courts have concluded that there must be evidence that the defendant harbored a sexual intent in order to prove a violation of section 314, subdivision (1). (See, e.g., In re Dallas W. (2000) 85 Cal.App.4th 937 [citing Smith and reversing indecent exposure (§ 314, subd. (1)) true finding because trial court found that juvenile "acted without any sexual intent"]; accord Honan, supra, 186 Cal.App.4th at p. 182 ["A person who exposes his private parts with the intent 'to direct public attention to his genitals' is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others"].)
C. The trial court abused its discretion in permitting the People to present Officer Pena's testimony pursuant to section 1108 because the People did not demonstrate that a reasonable juror could find that Ordaz committed the uncharged offense of indecent exposure

Ordaz claims that the section 402 hearing revealed that the People would be unable to present any admissible evidence at trial with respect to the uncharged indecent exposure incident to demonstrate that he "direct[ed] public attention to his genitals for purposes of sexual arousal, gratification, or affront." (Smith, supra, 7 Cal.3d at p. 366.) We agree.
Although it is not entirely clear from the record, it appears that the People intended to present evidence that Ordaz committed the offense of indecent exposure by exposing his genitals to the complaining party and her daughter. For example, in arguing for the admissibility of the uncharged offense evidence, the prosecutor suggested that the victims of the uncharged offense and the charged offenses were similar in age. In addition, in explaining its reasoning for admitting the evidence, the trial court specifically noted "[t]hat there was a car behind [Ordaz's] truck containing a woman and an eight- to ten-year-old girl. [¶] And we have a situation where [Officer Pena] arrested [Ordaz] for a violation of Penal Code [s]ection 314."
However, as a result of the trial court's proper ruling that none of the hearsay statements of the complaining party and her daughter would be admissible at trial, the People were unable to identify any evidence concerning any actions that Ordaz may have taken with respect to these individuals that could be presented at trial. Indeed, consistent with the trial court's ruling, the People presented no evidence at trial concerning any actions that Ordaz may have taken with respect to the complaining party and her daughter. Thus, given that the People did not identify any admissible evidence from which they could attempt to prove Ordaz's conduct with respect to the complaining party and her daughter, no rational juror could find that Ordaz committed the offense of indecent exposure by exposing his genitals to these individuals.
Nor can we conclude that the evidence was admissible on the theory that Ordaz committed the offense of indecent exposure by exposing his genitals to Officer Pena. As discussed above, Officer Pena testified at the section 402 hearing that he pulled Ordaz over, approached Ordaz's vehicle from the passenger side, and notified Ordaz of the reason for the stop. Officer Pena stated that, upon looking into Ordaz's car, he could see that Ordaz was "wearing boxer-style-type shorts" that were "open in the middle." Officer Pena could see the "middle portion" of Ordaz's penis. Officer Pena testified that he could not recall whether Ordaz's penis was erect.
Even if we were to assume, for purposes of this decision that, based upon this testimony, a rational juror could find that Ordaz " ' "willfully" ' " (Honan, supra, 186 Cal.App.4th at p. 181) exposed his genitalia to Officer Pena, and further assume that a rational juror could find that " ' "such exposure [occurred] in a public place or in a place where there are present other persons to be offended or annoyed thereby," ' " (ibid.) no rational juror could find that Ordaz " ' "lewdly" ' " exposed his penis to the officer. (Ibid. ["[t]he Supreme Court has construed . . . lewd exposure of private parts to mean 'that the actor . . . intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront' "].) Neither the trial court in its ruling, nor the People in any of their briefing in the trial court or in this court, has identified any such evidence. Accordingly, we conclude that given the complete absence of evidence to prove this critical element of the offense of indecent exposure (Smith, supra, 7 Cal.3d at p. 366), no rational juror could find that Ordaz committed the offense of indecent exposure by exposing his genitals to Officer Pena.
The People contend that they demonstrated "more than sufficient" evidence to prove "by a preponderance of the evidence that [Ordaz] committed the uncharged [offense of] indecent exposure." The entirety of the People's argument is the following:
"Officer Pena testified[ ] that he received a call from dispatch (although he was unaware whether the dispatch originated by a 911 call or otherwise) and responded to that call for service. When he contacted [Ordaz] on a public freeway, he saw [Ordaz's] partially exposed penis. After he spoke with the woman and her daughter, he had probable cause to arrest [Ordaz] for indecent exposure. [Ordaz's] arguments that his exposed genitalia was for some purpose other than sexual gratification is pure speculation. The facts presented through Officer Pena's testimony were more than sufficient for a jury to determine by a preponderance of the evidence whether [Ordaz] committed that offense."

To the extent that the People intend to suggest that Ordaz exposed himself to the complaining party and her daughter, as discussed above, the People did not demonstrate that they would be able to present any admissible evidence of Ordaz's conduct with respect to these individuals. While the People make reference to the fact that Officer Pena "spoke with the woman and her daughter," the trial court properly recognized that any statements made by these two individuals were hearsay and could not serve as admissible evidence of Ordaz's commission of a crime. In addition, the mere fact that Officer Pena arrested Ordaz for indecent exposure does not constitute sufficient evidence from which a reasonable juror could find, even by a preponderance of the evidence, that he committed the offense of indecent exposure. (People v. Medina (1995) 11 Cal.4th 694, 769 ["mere arrests are usually inadmissible, whether as proof of guilt or impeachment"]; accord CALCRIM No. 220 "The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial"].) As discussed above, to the extent the People intend to argue that Ordaz exposed himself to Officer Pena, there is no evidence that Ordaz lewdly exposed his genitalia to the officer as would be required for the jury to find that Ordaz committed an indecent exposure in the officer's presence.
In sum, the section 402 hearing demonstrated that the People would be unable to present evidence "sufficient for the jury to find, by a preponderance of the evidence, that [Ordaz] committed an enumerated offense." (Jandres, supra, 226 Cal.App.4th at p. 353.) Accordingly, we conclude that the trial court abused its discretion in permitting the People to present the section 1108 evidence at trial. (Jandres, supra, at p. 353.)
D. The trial court's error requires reversal
1. Standard of prejudice
A trial court's error in admitting evidence of a defendant's commission of a prior uncharged sexual offense pursuant to section 1108 is subject to the Watson standard of prejudice. (See Jandres, supra, 226 Cal.App.4th at p. 357; People v. Harris (1998) 60 Cal.App.4th 727, 741.) Under Watson, if a trial court erroneously admits evidence, a defendant must show on appeal that it is reasonably probable that he or she would have received a more favorable result if that evidence had been excluded. (See Watson, supra, 46 Cal.2d at p. 836.) Reasonably probable in this context "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, citing Watson, supra, at p. 837.) "[U]nder the Watson standard a hung jury is considered a more favorable result than a guilty verdict." (People v. Soojian (2010) 190 Cal.App.4th 491, 520.)
2. Application
The California Supreme Court has repeatedly stressed that evidence of uncharged crimes is inherently prejudicial. (E.g., Villatoro, supra, 54 Cal.4th at pp. 1165–1166 ["In enacting section 1108, the Legislature recognized that '[g]iven its highly inflammatory nature, uncharged misconduct is admissible after various safeguards are met. This is done in recognition that when this type of evidence is admitted, the odds of conviction increase dramatically' " (italics added)]; People v. Lewis (2001) 25 Cal.4th 610, 637; Falsetta, supra, 21 Cal.4th at p. 915 ["propensity evidence . . . tends to 'overpersuade' the jury," quoting Michelson, supra, 335 U.S. at pp. 475–476].)
Inadmissible evidence that suggested to the jury that Ordaz had previously exposed himself to a 10-year-old girl and her mother was clearly likely to inflame the jury's passions against him. The fact that the prosecutor urged the jury to rely on the inadmissible evidence in finding that Ordaz was guilty of the charged crimes served to enhance the potential for prejudice. (See People v. Diaz (2014) 227 Cal.App.4th 362, 384 ["A prosecutor's reference to evidence that should not have been presented to the jury increases the potential for prejudice flowing from the error"].)
Further, we reject the People's argument that any error in admitting the evidence was harmless because "the evidence of [Ordaz's] indecent exposure . . . was minimal in comparison to other incidents of abuse." The potential prejudicial impact of the erroneous admission of the evidence did not arise from the heinousness of the uncharged offense. Rather, the potential for prejudice arose from the likelihood that the jury would find that Ordaz was, as the prosecutor argued, "a creepy creeper," who had a propensity to commit sex crimes, and who therefore was likely to have committed the charged offenses. For this purpose, the admission of the evidence posed a great potential for prejudice.
Further, contrary to the People's contention in their brief, the other evidence presented at trial was not "overwhelming." There was no physical evidence of the charged crimes. The charged crimes were alleged to have taken place on numerous occasions over a period of years in a residence in which numerous people were often present, yet, no other witnesses corroborated the victims' testimonies or stated that they suspected abuse. On the contrary, several family members who lived in the residence testified in support of the defense. For example, Ordaz's daughter, Maria Luisa Diaz, testified that she had never witnessed any abuse. Ordaz's other daughter, Marcelina Ordaz, testified that she did not know that her father was sexually abusing the victims. Other family members testified that the victims appeared to be at ease around Ordaz even after the molestations were alleged to have begun. Jane Doe 1 disclosed the alleged abuse only after being punished and told that she would be required to go to Ordaz's house after school. While the People are certainly correct both that the victims gave detailed descriptions of alleged instances of molestations and that the victims' testimonies corroborated each other, it is also true that the People's case rested almost entirely upon the credibility of Jane Doe 1 and Jane Doe 2. That credibility was improperly bolstered by the admission of the erroneously admitted, highly prejudicial, evidence.
Under these circumstances, we are compelled to conclude that it is reasonably probable that the jury would have reached a result more favorable to Ordaz in the absence of the erroneous admission of the evidence pertaining to his having committed the offense of indecent exposure. Ordaz is entitled to a new trial during which the People may attempt to prove his guilt without the aid of this inadmissible evidence.
IV.
DISPOSITION
The judgment is reversed.


AARON, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.