P. v. McRoberts

Filed 8/30/07 P. v. McRoberts CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

Defendant Daniel James McRoberts was convicted by jury of attempting to kidnap a child under 14 years of age for the purpose of committing a lewd and lascivious act (count I), and attempting to commit a lewd and lascivious act on a child under the age of 14 (count II). He was sentenced to the upper term of five years and six months for count I, and an upper term of four years was imposed for count II, but stayed pursuant to Penal Code section 654.

On appeal, defendant raises numerous claims of error, which we shall reject and affirm the judgment.

FACTS

At approximately 3:30 p.m. on August 24, 2004, a school bus dropped off 11-year-old K.D. near the driveway of her house in rural Tehama County. As K.D. walked up the driveway, she heard a car go by, turn around, and pull up to the front gate. Because it looked like her mothers car, she ran back toward the gate hoping to get a ride to the house, which was 800 feet from the gate. As she neared the gate, K.D. saw defendant sitting in the car waving at her.

Defendant got out of the car, met K.D. at the gate, and asked her for directions to Red Bluff. When she began to give him directions, he came through the gate, drew out a piece of paper, and said [c]ome here and show me. She complied and stood next to him as he wrote the directions on the paper. He then gave her $10 for helping him.

After engaging in friendly conversation about K.D.s horses, defendant told her he wanted a souvenir. She offered him an orange but he declined the offer. Instead, he offered her $10 for her panties. K.D. told him [n]o, you need to go and gave him his money back. Defendant persisted and offered her $50, promising not to look when she removed her underwear.

When K.D. again refused his offer and told him to leave, defendant grabbed her wrist. She immediately pulled back, stepped into the rose bushes next to the driveway, lifted her foot to his stomach, and pushed him away with a kick. Defendant released K.D., said he wasnt going to hurt her, got into his car, and drove away.

K.D. then ran to her house and telephoned her mother, who first called 9-1-1 and then telephoned her husband, told him what K.D. had reported, and asked him to rush home. He drove to the house in less than two minutes, and he and K.D. waited for law enforcement officers to arrive.

Other evidence introduced by the prosecution included the testimony of four women who had previously been the victims of defendants sexual misconduct.

C.B. testified that in 1998, when she was eight years old, she was with her friend at a school playground where a man asked her if she knew what sex was and then grabbed her arm and touched her vagina. C.B. could not identify defendant as her assailant, but Officer Jay Guterding testified defendant admitted com[ing] into contact with C.B. that day, although he denied doing anything illegal.

T.R. testified that in 1999, when she was 14 years old, she was shopping with her mother at Wal-Mart when defendant walked by her and brushed his hand across her buttocks. Defendant walked by a second time, brushing his hand across T.R.s crotch. While she thought the first touching may have been accidental, she had no doubt the second touching was intentional. Police officers located defendant in the store, and T.R. identified him at that time. She also identified him at trial in this case.

S.S. described an incident that took place in 1999, when she was 13 years old. She testified that defendant approached her after school just outside her school gymnasium and began flirting with her. She had never seen him before. After asking her whether she had a boyfriend, he bent down and with his finger, traced a flower that was drawn on her leg, and then reached down her shirt and groped her breasts. She kicked him, and he called her a dirty slut or dirty bitch and rode off on his bicycle.

L.W. testified that in June 2004, she was walking with her four-year-old and nine-year-old children when defendant stared at them as he slowly drove by in his car several times. After he circled back, he pulled up next to them with his pants down. He was masturbating and had a big smile on his face. (The trial court excluded evidence that defendant told L.W., You better get them [the children] inside or I will take them.)

DISCUSSION

I

Defendant was charged with and convicted of attempted kidnapping by attempting, for the purpose of committing any act defined in Section 288, to hire[], persuade[], entice[], decoy[], or seduce[] by false promises, misrepresentations, or the like, any child under the age of 14 years to go . . . into another part of the . . . county[.] (Pen. Code,  207, subd. (b), 664; further section references are to the Penal Code unless otherwise specified.)^[1]

He contends this conviction must be reversed because, although there was evidence that he used force against the victim, there was no evidence he tried to hire, persuade, entice, seduce or lure [her] away from her home by misrepresentations in order to molest her. In his view, the facts that he asked the victim for directions and then offered her money for her underwear are insufficient to support the conviction because he did not ask her to come to his car to point out which way he should go and did not ask her to get in to act as navigator. Moreover, he claims, the evidence does not suggest that he intended to move the victim. It follows, he argues, that because [his] attempt to purchase her panties was not an attempt to move her, his grabbing her after her refusal cannot be viewed as an attempt to accomplish physically what he could not accomplish by enticement. We disagree.

K.D. testified that defendant was in his car when he waved to her. When K.D. remained at the gate, defendant got out of the car and approached her, ostensibly to get directions to Red Bluff. When she told him the way, he did not leave; instead, he pulled out a pen and piece of paper and said to K.D., Come here and show me, ostensibly so she could either write out the directions or make sure that he wrote them down correctly. After writing the directions on the paper, defendant gave K.D. $10 for helping him. Even though he had the directions in writing, he still did not leave; instead, he began asking about her horses out there, which apparently could be seen from where defendant and K.D. were standing. After asking her about the horses, he still did not leave; instead, he asked K.D. for a souvenir. Declining her offer of an orange, defendant said he would give her $10 for her panties. When K.D. replied [n]o, you need to go and gave him back the $10 he had handed her, defendant persisted, offering her $50 for her panties, promising not to look when she removed them. K.D. again refused his offer and told him to leave. Again, he did not do so; instead, defendant grabbed her wrist. K.D. successfully broke the hold by kicking defendant in the stomach; whereupon, he got back into his car and drove away.

As we will explain in more detail in Part II, post, from all of this evidence, a reasonable jury could infer that by misrepresenting he simply wanted directions to Red Bluff, then asking her to come to him to show how to get there, giving her $10, and offering another $50 for her panties, defendant was attempting to entice K.D. into getting into his car in order for him to take her away with the intention of sexually molesting her.

II

In another challenge to his attempted kidnapping conviction, defendant again argues there is no evidence that he intended to move K.D. a substantial distance, which is a fact necessary to satisfy the asportation element of kidnapping. Again, we disagree.

Attempting an aggravated kidnapping for the purpose of child molestation requires an effort to move the victim a substantial distance, which means a distance which is more than that which is merely incidental to the [attempted child molestation] and which substantially increase[s] the risk of harm to the victim over and above that necessarily present in the . . . attempted commission of [child molestation]. (People v. Rayford (1994) 9 Cal.4th 1, 22, 23.) The jury was so instructed.

In defendants view, there was no substantial evidence that would have allowed the jury to rationally find defendant attempted to get K.D. into defendants car, rather than just molest[] her where he stood in the driveway or move her to the bushes. Indeed, according to defendant, it was unnecessary for him to move the victim at all because due to the thick vegetation along the long driveway, nobody driving along the road would have been able to see [defendant and K.D.] on the driveway unless they were driving slowly by and looking straight up the driveway. Moreover, defendant argues, even if the evidence supports a finding that he tried to move K.D. into the bushes in order to molest her, such movement of a few feet would not have satisfied the element of substantial movement that is more than incidental to the attempted molestation and substantially increases the risk of harm over and above that necessarily present in the attempted molestation. We are not persuaded by defendants argument or the analysis of our dissenting colleague.

For starters, the dissent is wrong in characterizing the crime scene as an isolated area hidden from view by surrounding vegetation which significantly minimized the probability of detection. Even though it occurred in a rural area, defendants contact with K.D. was adjacent to a public road, on the driveway of the victims home at the gate only 30 feet from the road. It is true that the property is surrounded by vegetation, and that the driveway is lined by bushes and shrubbery which appear to obscure the view of the gate except when the viewer is at the opening of the driveway that leads to the gate 30 feet away. This, however, does not compel a finding that defendant had no reason to fear detection if he simply molested K.D. at the gate and, thus, had no reason to want to move her. After all, there was no evidence that this was a remote and seldom used road; to the contrary, not only was defendant using the road, it took the victims father less than two minutes to get there after receiving his wifes call, and law enforcement officers arrived only four or five minutes, if that, after the 9-1-1 call. Therefore, a person passing by and looking to see the houses along the road, as many do, or being curious due to the presence of defendants car, could have looked down the driveway and seen defendant and the victim at the gate only 30 feet off the road. Indeed, for all defendant knew, one of K.D.s parents may have been home, or about to return home, to greet K.D. as she arrived after school and could have seen her from the house or as the parent arrived at the driveway. Simply stated, the evidence provides substantial support for a finding that defendant intended to move K.D. to avoid being detected as he tried to molest her.

Our dissenting colleague makes much of the fact that defendant did not ask K.D. if she wanted to go for a ride, order[] her to get into his vehicle, or suggest[] that they go for a walk to another location that would make it more difficult for [K.D.] to escape or less likely they would be heard or seen by third parties. This is of no moment because the evidence leads to a reasonable inference that defendant was attempting to entice K.D. into his car by more subtle means of persuasion. Also of importance to our colleague is the fact that there is no evidence [defendant] pulled [K.D.] into or toward his vehicle or in any other direction. This observation ignores that K.D. was able to immediately break defendants grasp by kicking him in the stomach before he could pull her anywhere, at which point he abandoned his efforts, apparently concluding that K.D. would not go without a fight and the commotion might attract attention and his apprehension.

Our dissenting colleague also emphasizes that defendants modus operandi had been, as shown by the testimony of three of the other victims of his sexual molestations, to quickly grab or touch a young girl without moving her to another location. But unlike the prior incidents, defendant approached K.D. using a ruse often used by child molesters to take a victim away to molest her or him. Defendant stopped his car and asked K.D. for directions to nearby Red Bluff, despite the fact that he lived in and had grown up in the Redding area, which is not very far from Red Bluff. When K.D. gave him directions, he pulled out a piece of paper and said, Come here and show me, thus luring the child to a position where he could grab her if necessary to achieve his objective. He even went so far as to offer K.D. money if she would take off her panties and give them to him. Then, when she resisted, he grabbed her wrist. If he had simply wanted to quickly grope her breasts or vagina, he could have done so right where they were standing; instead, he grabbed her wrist. From these facts, the jury reasonably could infer that defendant wanted to do more than just grope K.D.; that to prevent anyone from seeing him engage in a more severe molestation of her, he planned to lure her into his car and drive away with her; and that the victim thwarted defendants plan when she broke free by kicking him in the stomach. This is not, as the dissent suggests, purely speculati[on]. It is a reasonable, commonsense inference that can be drawn from the evidence.

Defendant acknowledges that although, in his view, moving K.D. into the bushes would not have been the substantial distance needed for aggravated kidnapping, [t]aking an intended molestation victim into a car and driving away with her is obviously another matter. In effect, defendant concedes, as he must, that attempting to lure a child into a car, for the purpose of taking her away to sexually molest the child, satisfies the elements of attempted kidnapping in violation of sections 207, subdivision (b), and 664.

In sum, the evidence was sufficient to support the conviction for attempted kidnapping.

III

Next, defendant contends that his conviction for attempted child molestation must be reversed because his conduct constituted at most mere preparation, rather than an attempt to commit the crime.

An attempt to commit a lewd and lascivious act on a child under the age of 14, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child ( 288, subd. (a), 664), requires both an intent to molest the child and a direct, but ineffectual, act toward the commission of a crime. (People v. Hill (1997) 58 Cal.App.4th 1078, 1089.) Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.] (People v. Jones (1999) 75 Cal.App.4th 616, 627.)

No bright line distinguishes mere preparatory acts from commencement of the criminal design; however, the more clearly the intent to commit the offense is shown, . . . the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement. (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 187-188.)

In defendants view, his driving to the [victims] property and asking for directions constitute mere preparation. He then makes the dubious assertion that his offering to buy her panties, while offensive, did not advance any intent he harbored to commit a sexual assault. Finally, he argues, his grabbing K.D.s wrist probably constitutes a battery but cannot objectively be viewed as the immediate precursor to an act of molestation. There simply was no evidence that [he] ever reached for an intimate part of the girls body, as he had done in the propensity cases. The contention borders on being frivolous.

The evidence clearly demonstrates defendant had the specific intent to commit a lewd and lascivious act on K.D. for his sexual arousal or gratification. His past conduct showed he has a sexual interest in children and had previously molested young girls and exposed himself to a woman and her two children. In addition, his deceitful ruse to get 11-year-old K.D. to come to him, his offering her $50 if she would take off her panties and give them to him, and his grabbing her when she told him to leave constitute overwhelming evidence that defendant intended to commit a lewd and lascivious act on her for his sexual arousal or gratification. (See People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [proof of intent is derived from all the circumstances, including the defendants actions].)

This compelling inference is not undermined by the fact that defendant did not grab an intimate part of K.D.s body. As we have explained (see Part II, ante), the jury reasonably could infer that defendant wanted to do more than just grope K.D., namely, that his plan was to engage in a more severe molestation of her and that when he failed in his effort to lure her into his car so he could drive off with her to accomplish his objective, he grabbed K.D. hoping to force her into the car.

Hence, defendants effort to lure K.D. into his car by false representations, and when that failed, his grabbing her wrist, were direct but ineffectual acts towards the commission of his intended crime, child molest in violation of section 288, subdivision (a). Consequently, substantial evidence supports his conviction for the attempt to commit that crime.^[2]

Indeed, the attempt was completed earlier when defendant asked K.D. to remove her panties and give them to him. This is so because a lewd or lascivious act upon a child under the age of 14 includes any touching of any part of the childs body if it is accomplished with the requisite intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant (People v. Martinez, supra, 11 Cal.4th at p. 442); and the unlawful touching need not be done by the defendant; it is sufficient if the child, at the defendants direction, touches herself. (People v. Austin (1980) 111 Cal.App.3d 110, 112, 114-116 [directing the child to pull down her pants].) Defendants request for K.D. to take off her panties and give them to him was plainly for the purpose, and with the intent, of his sexual arousal or gratification. Not just a preparatory act, it was an immediate step toward satisfying his sexual need. Thus, if K.D. had complied, a violation of section 288, subdivision (a) would have occurred. (People v. Austin, supra, 111 Cal.App.3d at pp. 114-116; see People v. Mickle (1991) 54 Cal.3d 140, 175-176; People v. Meacham (1984) 152 Cal.App.3d 142, 152-153.)

IV

We reject defendants contention that the trial court erred in not instructing on felony and misdemeanor false imprisonment, and attempted false imprisonment by fraud or deceit, as lesser included offenses of attempted kidnapping.

A lesser offense may be included in a greater offense when, under the elements test, . . . all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater [crime] cannot be committed without committing the lesser, or under the accusatory pleading test, the pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. (People v. Moon (2005) 37 Cal.4th 1, 25-26.)

False imprisonment is the unlawful violation of the personal liberty of another. ( 236.) It is accomplished by compelling a person to remain where the person does not wish to remain, or to go where the person does not wish to go. (People v. Reed (2000) 78 Cal.App.4th 274, 280) When it is effected by violence, menace, fraud, or deceit, false imprisonment is a felony. ( 237, subd. (a).)

As we have noted in part I, ante, attempted kidnapping in violation of sections 207, subdivision (b), and 664 is committed by attempting, for the purpose of committing any act defined in Section 288, to hire[], persuade[], entice[], decoy[], or seduce[] by false promises, misrepresentations, or the like, any child under the age of 14 years to go . . . into another part of the . . . county[.] ( 207, subd. (b).)

Comparing the language of section 236 with the language of section 207, subdivision (b), it plainly appears that the elements of false imprisonment are not included in the elements of kidnapping in violation of section 207, subdivision (b), which can be committed without compelling a person to remain where the person does not wish to remain, or to go where the person does not wish to go. For this reason, under the elements test, false imprisonment is not a lesser included offense within a violation of section 207, subdivision (b).

And because the amended information used only the language of the statute in charging an attempted violation of section 207, subdivision (b), false imprisonment and attempted false imprisonment are not lesser offenses under the accusatory pleading test.

V

We also reject defendants claim that the trial court erred in not instructing on the crime of battery as a lesser included offense of the charge of attempted kidnapping.

Just as the attempted kidnapping alleged in this case could be committed without false imprisonment of the victim (see part IV, ante), it could be done without any willful and unlawful use of force or violence upon the person of another ( 242), i.e., without committing battery. Thus, battery was not a lesser included crime under either the elements test or the accusatory pleading test. (People v. Moon, supra, 37 Cal.4th at pp. 25-26.)

VI

Citing Evidence Code section 1360, defendant argues the trial court abused its discretion by allowing Deputy Sheriff Martin Perrone to testify regarding K.D.s hearsay statements, without first holding a hearing to determine their reliability. As pertinent to the facts of this case, Evidence Code section 1360 states: (a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing . . . any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [] (1) The statement is not otherwise admissible by statute or court rule. [] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [] (3) The child . . . [] (A) Testifies at the proceedings. . . . [] . . . [] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.^[3]

Defendant acknowledges he did not object in the trial court to the testimony on the ground that the court did not conduct a hearing and decide whether the time, content, and circumstances of the out-of-court statement provide sufficient indicia of its reliability.

Ordinarily, failure to object in the trial court on the ground raised in the appellate court forfeits the issue on appeal. (Evid. Code,  353, subd. (a); People v. Harris (2005) 37 Cal.4th 310, 335.) However, in defendants view, the forfeiture rule does not apply because Evidence Code section 1360 imposed on the trial court a duty sua sponte to hold a hearing, outside the jurys presence, and make a determination regarding the reliability of K.D.s out-of-court statement. We are not persuaded.

Nothing in the language of Evidence Code section 1360 imposes a duty on the trial court to hold sua sponte a reliability hearing regarding certain out-of-court statements by a sex crime victim under the age of 12. Rather, among other things, the statute requires the proponent of such evidence to give the opposing side sufficient notice in advance to prepare to meet the statement. (Evid. Code,  1360, subd. (b).) With such notice, the opposing side has the opportunity to raise an objection, which triggers the courts duty to hold a reliability hearing. Defendant does not claim the prosecution failed to comply with this notice requirement. Thus, there is no convincing reason not to apply the general rule that such statements become competent evidence absent a timely, specific objection. (See People v. Pierce (1979) 24 Cal.3d 199, 206, fn. 3; Smith v. Smith (1955) 135 Cal.App.2d 100, 105.) For all of these reasons, the trial court does not have a duty to hold sua sponte a reliability hearing.

In any event, introduction of K.D.s out-of-court statement to Deputy Sheriff Perrone did not prejudice defendant. (Cal. Const., art. VI, 13; Evid. Code, 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 835.) As the People correctly point out, K.D.s statement to Perrone was cumulative to her testimony at trial. Thus, defendant would not have obtained a more favorable result if the statement had been excluded.

VII

Defendant asserts the introduction, pursuant to Evidence Code section 1108, of four instances of his prior sexual misconduct denied him due process of law under the Fourteenth Amendment to the United States Constitution.^[4] Pointing out that the California Supreme Court has already rejected such a contention (People v. Falsetta (1999) 21 Cal.4th 903 (hereafter Falsetta)), defendant argues that Falsetta was wrongly decided.

Having raised the issue, defendant recognizes that, as stated by his counsel, in the absence of controlling U.S. Supreme Court authority, [we are] bound by a decision of the California Supreme Court interpreting a federal question. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There is no United States Supreme Court authority directly contrary to Falsetta; thus, defendants contention must be tendered to a different court.

VIII

In another attack on the other sexual misconduct evidence, defendant argues that the trial court abused its discretion under Evidence Code section 352 in failing to limit the amount of propensity evidence admitted under Evidence Code section 1108. We disagree.

When it enacted Evidence Code section 1108, the Legislature declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness. (Falsetta, supra, 21 Cal.4th at p. 912; italics added.) Indeed, [o]ur elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence and that the need for this evidence is critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.] (Id. at pp. 911-912; italics added.)

Because evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible (People v. Yovanov (1999) 69 Cal.App.4th 392, 405), although the trial court may conclude, for reasons set forth in section 352 of the Evidence Code, that the evidence should be excluded. (Evid. Code,  1108, subd. (a).)

Unless defendant shows that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice, we must affirm the courts decision to allow the introduction of evidence of other sex crimes. (People v. Callahan (1999) 74 Cal.App.4th 356, 367.)

As recounted in the factual summary, ante, the trial court let the prosecution introduce evidence that on four, separate, prior occasions, defendant (1) grabbed the arm of eight-year-old C.B., asked her if she knew what sex was, and then touched her vagina; (2) brushed his hand across the buttocks of 14-year-old T.R. as he walked past her in a store, and then walked by again this time brushing his hand across her frontal private areas down there, namely her crotch area; (3) approached 13-year-old S.S. outside a school gymnasium, reached down her shirt, groped her breast, and then called her a dirty slut or dirty bitch when she kicked him for groping her; and (4) pulled his car up next to 26-year-old L.W. and her four-year-old and nine-year-old children and, with a big smile on his face, masturbated in front of them.

In exercising its discretion, the trial court excluded evidence that defendant told L.W., You better get them [the children] inside or I will take them. The court also excluded evidence that on May 15, 1998, 15-year-old M.P. came home and discovered defendant inside the house; as he fled, defendant dropped a womans brassiere that he had taken from the house.

Defendant believes the court should have limited the number of instances that were admitted because, in his view, [i]t is one thing to inform the jury that [he] is the type of person who commits certain acts. It is another thing to lead them to believe that [he] is the type of person who commits criminal sex acts every chance he gets. According to defendant, he was prejudiced by the other sexual misconduct evidence because the record of what occurred between [him] and [the victim in this case, K.D.] is equivocal at best[, and] [a]dmitting just one or two of the events from his past still would have left a rational jury comfortable with harboring a reasonable doubt that, this time, [defendant] was just acting rude or goofy. Admitting all four events was akin to directing a verdict for the prosecution. The contention lacks any merit.

Defendants assertion that the evidentiary ruling was akin to a directed verdict is so baseless and unsupported by reason or authority that it does not require any further discussion. (Peoplev.Hardy (1992) 2 Cal.4th 86, 150; Atchleyv.City of Fresno (1984) 151 Cal.App.3d 635, 647.)

And his claim of prejudice fails because for purposes of an Evidence Code section 352 discretionary ruling, prejudicial is not synonymous with damaging, but refers instead to evidence that uniquely tends to evoke an emotional bias against defendant without regard to its relevance on material issues. [Citations.] (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Here, as explained by the Legislature, the prior sexual offense evidence was relevant, indeed highly probative, on the material issues of the victims credibility and defendants intent. Therefore, the introduction of four instances of such prior conduct, rather than only one or two, was not prejudicial within the meaning of Evidence Code section 352.

The record reflects that in allowing the introduction of most but not all of the proffered prior sex crime evidence, and excluding part of the evidence regarding one of the prior acts, the trial court engage[d] in a careful weighing process and considered the factors set forth in Evidence Code section 352, as well as the availability of less prejudicial alternatives. . . such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (Falsetta, supra, 21 Cal.4th at p. 917.)^[5]

There was no abuse of discretion. K.D. and the victims in the uncharged offenses, with the exception of L.W. who was with her four-year-old and nine-year-old children when defendant intentionally masturbated in front of them, were young children, and the offenses occurred within a two-year period of time. By showing defendant had engaged in a pattern of such conduct against young victims, the evidence established his propensity to commit sexual molestations of young females. Because admission of only one or two of the offenses would not have been as probative to show his propensity, the trial court acted well within its lawful discretion in allowing all four incidents to be placed in evidence.

IX

Also without merit is defendants claim that the trial court abused its discretion by allowing introduction of the prior sexual crimes evidence in the prosecutions case-in-chief. In his view, given the purpose of the statute, such evidence must be withheld until rebuttal in the event that the defendant elects to testify.

In making this claim, defendant attempts to resurrect an issue that was raised, but has long since been settled contrary to defendants position, with respect to Evidence Code section 1101, subdivision (b), a statute that makes evidence of prior uncharged offenses admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition. (Italics added.)

In 1980, the California Supreme Court held that when an uncharged offense is proffered to refute an ultimate fact such as intent, that fact must be actually in dispute. [Citation.] If an accused has not actually placed that [ultimate fact] in issue, evidence of uncharged offenses may not be admitted to prove it. [Citations.] The fact that an accused has pleaded not guilty is not sufficient to place the elements of the crimes charged against him in issue. [Citation.] (People v. Thompson (1980) 27 Cal.3d 303, 315; but see People v. Archerd (1970) 3 Cal.3d 615, 639.) Relying on this language, the Court of Appeal in People v. Perkins (1984) 159 Cal.App.3d 646 concluded that prior crimes evidence was inadmissible unless the defense specifically placed the material fact in issue. (Id. at p. 652.)

However, with respect to the introduction of prior bad acts pursuant to Evidence Code section 1101, the California Supreme Court has now stated repeatedly that a not guilty plea places in issue all of the elements of the charged offense. (People v. Roldan (2005) 35 Cal.4th 646, 705-706; People v. Catlin (2001) 26 Cal.4th 81, 146.) Therefore, [i]t is not necessary for the defendant to raise issues before the People may meet them [with evidence of prior bad acts] where this is part of the prosecutions burden. (People v. Archerd, supra, 3 Cal.3d at p. 639.)

In other words, prior uncharged offenses are admissible under Evidence Code section 1101, subdivision (b) in the prosecutions case-in-chief as circumstantial evidence to prove a fact necessary to the prosecutions burden of proof. (People v. Roldan, supra, 35 Cal.4th at pp. 705-706; People v. Archerd, supra, 3 Cal.3d at p. 639.) Evidence Code section 1108 is no more restrictive. To the contrary, the only restriction on the admissibility of prior sex crimes evidence is that stated in Evidence Code section 352, which does not limit admission of evidence to impeachment or rebuttal.

Moreover, the restriction urged by defendant would conflict with the purpose of Evidence Code section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 911.) The statute serves that purpose by relaxing the evidentiary restraints [that Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. (Ibid.)

Given the wording, the purpose, and the legislative history of Evidence Code section 1108, it would be absurd to conclude that it restricts admission of prior sex crimes evidence to rebuttal or impeachment evidence when subdivision (b) of Evidence Code section 1101 does not.

In sum, Evidence Code section 1108 authorizes the introduction of propensity evidence in the Peoples case-in-chief to prove an element of their case.

Here, because defendant was charged in part with an attempt to commit a violation of section 288, his intent to commit the offense was part of the prosecutions burden of proof, and the evidence showed the offense was committed in an isolated location where K.D. and defendant were the only eye witnesses. Defendants disposition to commit sexual offenses against young females was thus relevant to prove his sexual intent. There was no abuse of discretion in admitting it for that purpose in the prosecutions case-in-chief.

X

Next, defendant contends the prosecutor committed prejudicial misconduct during his closing argument when he told the jurors, [a]nd keep in mind that both sides deserve the same fair trial: The victim deserves a fair trial, the public deserves the same fair trial, possible future victims, past victims, we all deserve the same fair trial, and I am sure you will give us that and have given us that.

As the People point out, the claim of error is forfeited because defendant did not make a timely objection in the trial court. (People v. Welch (1999) 20 Cal.4th 701, 753.)

In any event, there was no error. While a prosecutor may vigorously argue the case, he or she may not appeal to the sympathy or passions of the jurors at the guilt phase of a criminal trial. (People v. Fields (1983) 35 Cal.3d 329, 362.) Thus, it is improper to ask jurors to step outside their role as objective fact finders by viewing the case through the victims eyes. (Ibid.) Likewise, a prosecutors suggestion the accused may commit future criminal acts is improper unless supported by the evidence. (See People v. Hughey (1987) 194 Cal.App.3d 1383, 1396.)

Here, the prosecutors remark was not an appeal to the jurys passion and sympathy. While he referenced K.D., as well as past and future crime victims, the references were made in the context of telling the jury that both sides deserve a fair trial, which is an accurate and fair statement similar to the courts instruction to the jurors that [b]oth the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict . . . . The prosecutor did not ask jurors to punish defendant for past and future crimes, nor did he ask the jury to view the crime through the victims eyes. Thus, the comment was not misconduct.

XI

Because we have concluded that the prosecutors comment in closing argument was not misconduct, we reject defendants claim that he was deprived of the effective assistance of counsel when his trial attorney failed to object to the comment. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel].)

XII

In denying probation, the trial court emphasized that defendants prior criminal conduct indicates that he is a danger to all female minor children. The trial court then imposed the upper term on count I, attempted kidnapping, because the court found that there were no facts in mitigation and that there were four factors in aggravation: the victim was vulnerable; defendant has engaged in a pattern of sexual misconduct, including convictions for a lewd and lascivious act on a child under the age of 14 and sexual battery; his prior performance on probation and parole was unsatisfactory; and defendant received a dishonorable discharge from the California Youth Authority due to his continual sexual offending. Without stating reasons, the court also imposed the upper term on count II, attempted child molestation, but stayed it pursuant to section 654.

Citing Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d. 856] (hereafter Cunningham), defendant contends that imposition of the upper terms violated his Sixth Amendment Right to jury trial and due process right under the Fourteenth Amendment to have facts found beyond a reasonable doubt when it imposed an aggravated base term using facts not found by the jury or admitted by [defendant].

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d. at p. 864], the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)

Defendant properly concedes his propensity incidents gave rise to juvenile adjudications, which are an exception to the rule of Apprendi, Blakely, and Cunningham. He contends, however, that without the other aggravating factors stated by the trial court, it cannot be said with any confidence that the trial court would have imposed the upper term. The contention fails in light of the California Supreme Courts recent decision in People v. Black (July 19, 2007, S126182) __ Cal.4th __ (hereafter Black II).

Black II held that when one aggravating circumstance falls within an exception to the Apprendi/Blakely/Cunningham rule, and thus need not be found true by a jury beyond a reasonable doubt, that aggravating circumstance alone makes the defendant eligible for the upper term; consequently, the Sixth Amendment permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, ___ Cal.4th ___ [at p. 12]; orig. italics.)

This is so because the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 863]). (Black II, supra, ___ Cal.4th at p. __ [at p. 11].) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, ___ Cal.4th at p. __ [at p. 13].)

Hence, [t]he issue to be determined in each case is whether the trial courts fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. (Black II, supra, __ Cal.4th at p. __ [at p. 16]; orig. italics.) As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Id. at pp. __ [at pp. 16-17].)

Defendant concedes that his prior adjudications of criminal misconduct constituted an aggravating factor upon which the trial court properly relied even though it was not submitted to the jury. Because that fact alone made defendant eligible for the upper term, his constitutional attack on the sentence fails. (Black II, supra, __ Cal.4th at pp. __ [at pp. 11, 12, 16-17].)

In any event, in light of the trial courts explicit finding that defendants prior adjudications for sexual offenses shows that he is a danger to all female minor children, we are satisfied beyond a reasonable doubt (Washington v. Recuenco (2006) 548 U.S. ___, ___ [165 L.Ed.2d 466, 473, 476-477]) that the court would have imposed the upper terms based solely on those prior adjudications (People v. Osband (1996) 13 Cal.4th 622, 728 [one valid aggravating factor is sufficient to expose defendant to the upper term]), which factor did not have to be submitted to the jury. Therefore, the courts reliance on other aggravating factors that had to be submitted to a jury, but were not, was harmless.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

I concur:

HULL, J.

The majority finds there is sufficient evidence of asportation to support the conviction for attempted kidnapping. I disagree and would reverse the conviction for that offense because in my view, the evidence fails to show defendant intended to move K.D. a distance that was substantial and not incidental to the molestation.

The test on appeal for determining if substantial evidence supports a conviction is whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citation.] In making this determination, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford).)

The information charged defendant with attempted kidnapping for purposes of committing a lewd and lascivious act under Penal Code Section 288. ( 664/207, subd. (b).) To prove the offense of attempt, the prosecution must establish that defendant had a specific intent to commit the substantive offense and committed a direct but ineffectual act towards its commission. (People v. Hill (1997) 58 Cal.App.4th 1078, 1089.) Proof of intent must usually be derived from all the circumstances, including the defendants actions. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)

Section 207, subdivision (b) makes punishable [e]very person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices . . . or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county

. . . .

The hallmark of kidnapping is the element of movement or asportation of the victim. However, the test for determining whether there has been sufficient asportation depends on whether the charge is for simple kidnapping ( 207, subd (a); Rayford, supra, 9 Cal.4th at p. 14) or aggravated kidnapping. ( 209, subd. (b); People v. Daniels (1969) 71 Cal.2d 1119, 1139; Rayford, supra, at p. 14.)

The jury was instructed to apply the test of asportation applicable to aggravated kidnapping. (CALJIC No. 9.51; People v. Daniels, supra, 71 Cal.2d at p. 1139; Rayford, supra, 9 Cal.4th at pp. 11-14, 20.)^[6] That test requires proof the victim was moved a substantial distance that is not merely incidental to the target crime and the movement substantially increases the risk of harm to the victim over and above that necessarily present in the attempted commission of the target crime. (People v. Daniels, supra, 71 Cal.2d at p. 1139; Rayford, supra, 9 Cal.4th at pp. 20-21; see 209, subd. (b)(2); People v. Dominguez, supra, 39 Cal.4th at p. 1153.)^[7]

Considerations relevant to a determination whether the movement is merely incidental is the scope and nature of the movement and the context of the environment in which the movement occurred. (Rayford, supra, 9 Cal.4th at p. 12; People v. Daniels, supra, 71 Cal.2d at p. 1131, fn. 5.) Although [t]his includes the actual distance a victim is moved. . . . there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong [of the Daniels test]. (Rayford, supra, atp. 12.) Thus, in Daniels, the court concluded that movement of three robbery victims from one room to another within the premises in which they were found was merely incidental to the commission of the robbery. (People v. Daniels, supra, 71 Cal.2d at p. 1140.)

In determining the second prong of the Daniels test, whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery, consideration should be given to such factors as the decreased likelihood of detection, the danger inherent in a victims foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. (Rayford, supra, 9 Cal.4th at p. 13; see e.g., People v. Lara (1974) 12 Cal.3d 903, 908 & fn. 4 [examples of such risk of harm "include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties"]; In re Earley (1975) 14 Cal.3d 122, 132 [asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by [defendant]; People v. Stanworth, supra, 11 Cal.3d at p. 598 [movement of victim 25 feet from side of road to open field where defendant bound, raped and robbed her was incidental to rape and robbery].)

To prove an attempted kidnapping, the prosecution must prove the specific intent to kidnap and an affirmative act towards the commission of that crime. (People v. Fields (1976) 56 Cal.App.3d 954, 956.) In a case of attempted simple kidnapping, the court in Fields found the evidence sufficient to support the verdict where the evidence showed a strange man seized a 13-year-old girl on a residential street and ordered her to get into his vehicle while the motor was running. (Ibid.)

Here there is no evidence K.D. was moved any appreciable distance whatsoever. However, because defendant was charged with the offense of attempt rather than the completed offense of kidnapping, the prosecution did not have to prove there was any movement. (People v. Fields, supra, 56 Cal.App.3d at p. 957.) Under section 207, subdivision (b), it was required to show only that defendant intended to entice K.D. to move a distance that was substantial enough to increase the risk of harm over and above that necessary to commit a lewd act with the requisite intent and not merely incidental to that act. (People v. Daniels, supra, 71 Cal.2d at p. 1139.) The evidence fails in that regard also.

There was no evidence defendant asked K.D. if she wanted to go for a ride, ordered her to get into his vehicle, or suggested that they go for a walk to another location that would make it more difficult for her to escape or less likely they would be heard or seen by third parties. While the evidence shows defendant grabbed K.D.s wrist, there is no evidence he pulled her into or towards his vehicle or in any other direction. Indeed, there is no evidence he intended to entice her to go anywhere other than to remain where they were standing, which was an isolated area hidden from view by surrounding vegetation which significantly minimized the probability of detection.^[8] Because of the nature of their location, there was no need to move K.D. to a more distant or isolated area. Without more, the fact defendant grabbed her only supports the inference he intended to molest her and was not going to take no for an answer. Nor does evidence of the uncharged sex offenses assist the People because that evidence does not raise an inference defendant intended to kidnap K.D. since none of those offenses involved kidnapping or attempted kidnapping and did not take place in isolated locations.

The conclusion reached by the majority that defendant intended to kidnap K.D. is purely speculative. In a prosecution for kidnapping, the intent to kidnap may be inferred from evidence of actual movement. In a case of attempted kidnapping where there is no actual movement (People v. Fields, supra, 56 Cal.App.3d at p. 956), no such inference may be drawn. Consequently, evidence of intention must be based on something more than evidence the defendant merely touched the victim and intended to commit another offense.

The majority relies on the fact the location where defendant and K.D. were standing could be seen from the house or the road, giving defendant a motive to move her. However, no one was home and there was no evidence anyone was standing outside the house or anywhere else on the property where they could have seen defendant and be seen by him. Moreover, the house was 800 feet up the driveway and defendants modus operandi was to quickly grab or touch a young girl, which he could have accomplished by quickly touching her breast or some other body part while her back was to the house, making it very difficult for someone at the house to see what he had done.

The sufficiency of the evidence of asportation turns on the criterial requirements of Daniels. As the court in Stanworth explained, [u]nder Daniels, the risk of harm factor refers to the risk created by the victim's movements that he will suffer significant physical injuries over and above those to which a victim of the underlying crime is normally exposed; it does not refer to the increased risk that the crime of robbery will be committed. [Citation.] However, acts of removing the victim from public view do not in