Filed 7/31/17 P. v. Pacheco CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN ADRIAN PACHECO,

Defendant and Appellant.

F072425

(Super. Ct. No. VCF312467)


OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Steven Adrian Pacheco was convicted of 14 counts of sexually molesting his stepdaughter, who was 15 years old when the abuse was revealed. At trial, Pacheco admitted to certain acts of touching, but said they happened when he and his stepdaughter were roughhousing and he had no sexual intent. In this appeal, he argues that the trial court abused its discretion when it admitted some evidence of prior acts to prove that his touching the victim did have a sexual intent. Specifically, the court admitted: (1) evidence that Pacheco possessed numerous items of pornography with the word “teen” in the title; and (2) a document handwritten by Pacheco describing means by which a lesbian sexual predator might take advantage of a victim. Pacheco maintains that this was evidence of his character, was being used to prove his conduct on specific occasions, and thus was inadmissible under Evidence Code section 1101, subdivision (a). The trial court admitted the evidence as probative of intent under Evidence Code section 1101, subdivision (b).
The case law on this topic focuses on the similarity of the prior conduct and the charged conduct: The prior conduct is admissible to show intent if it is sufficiently similar to the charged conduct to support an inference that the defendant probably did both with the same intent. We agree with Pacheco’s argument that the prior conduct here—watching pornography and writing a document—was too dissimilar to the charged conduct to support such an inference, even though it did tend to show a sexual interest in teenagers and an interest in sexual exploitation of vulnerable people. Dissimilar conduct merely tending to show interests related to the intent that is part of the crime is not sufficient under the Evidence Code.
We do not, however, believe the error is reversible. The evidence admitted at trial included communications between Pacheco and the victim’s mother (Pacheco’s wife) that amounted, for all practical purposes, to a confession of his sexual intent. In light of this, it is not reasonably probable that Pacheco would have obtained a better result at trial without the prior conduct evidence, even though he retracted the confession in his trial testimony.
We will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
At the time of trial in August, 2015, Pacheco was 45 years old. The victim, V.C., was born in 1999, and was about a year old when her mother, M.P., met Pacheco. M.P. and Pacheco moved in together soon after they began dating. They had been together 14 or 15 years when he was arrested in this case, and had been married about five years. As M.P. described the relationship between V.C. and Pacheco, V.C. regarded him as her father.
One evening in January, 2015, V.C. was taking part in a youth group at her church. The pastor showed the group a video on the topic of sexual abuse of children. Afterwards, V.C. disclosed Pacheco’s abuse of her to the pastor. Then she went home and told her mother.
The district attorney filed an information charging Pacheco with 14 counts, as follows:
Count Offense Penal Code § Dates Specified act
1 Lewd act on a victim under age 14 288, subd. (a) Nov. 21, 2005, to Nov. 21, 2007 “hand to penis, first time”
2 Same as count 1 Same as count 1 Nov. 21, 2005, to Nov. 21, 2007 “hand to penis, last time”
3 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “touched breasts over clothes, first time”
4 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “touched breasts over clothes, last time”
5 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “touched breasts under clothes, last time”
6 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “touched breasts under clothes, last time”
7 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “touched buttocks, first time”
8 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “touched buttocks, last time”
9 Same as count 1 Same as count 1 Nov. 21, 2010, to Nov. 20, 2013 “mouth to ear”
10 Lewd act on a victim 14 or 15 years old by a perpetrator at least 10 years older than the victim § 288, subd. (c)(1) Nov. 21, 2010, to Jan. 29, 2015 “touched vagina, first time”
11 Same as count 10 Same as count 10 Nov. 21, 2010, to Jan. 29, 2015 “touched vagina, last time”
12 Same as count 10 Same as count 10 Nov. 21, 2013, to Jan. 29, 2015 “touched breasts over clothes”
13 Same as count 10 Same as count 10 Nov. 21, 2013, to Jan. 29, 2015 “touched breasts under clothes”
14 Same as count 10 Same as count 10 Nov. 21, 2013, to Jan. 29, 2015 “touched buttocks”
Counts 1 and 2 each included a special allegation that Pacheco had substantial sexual conduct with a victim under age 14. (§ 1203.066, subd. (a)(8).) (Counts 10 and 11 originally had the same special allegation, but those counts were amended by interlineation to allege that V.C. was 14 at the time, rendering the special allegation inapplicable.
V.C. testified about the abuse at trial. She stated that a couple of times, when she was between six and eight years old and the family was living in Los Angeles, Pacheco, while naked, made her hold his penis and testicles in her hand. He told her not to tell anyone.
V.C. testified that after her brother was born and the family moved to Tulare County, when she was around 11 years old, Pacheco began to grab and slap her buttocks and grab her breasts. Sometimes he grabbed her breasts with his whole hand and other times he pinched them. On some occasions he did this over her clothes and on others under her clothes. She told him she did not like it. Sometimes he stopped, and other times he continued while pretending not to hear. Before she turned 14, Pacheco grabbed her breasts more than twice over her clothes and more than twice under her clothes. He also grabbed her buttocks more than twice before she turned 14.
Once Pacheco grabbed V.C., put her on his bed, got on top of her, and sucked her right ear. She told him to stop, screamed, and tried to get away. He told her to stop.
V.C. testified that Pacheco continued touching her breasts and buttocks after she turned 14. He touched her breasts more than two times over her clothing and more than two times under her clothing after she turned 14. He also touched her buttocks more than twice after she turned 14.
Pacheco also touched V.C.’s vagina over her clothes. This happened more than once and V.C. thought she was 14 at the time. Sometimes he did this with his knee and sometimes with his hand. It was more than once with his hand, and it was on more than one occasion.
Before V.C. turned 13, Pacheco sometimes came into the bathroom while she was bathing and pulled back the shower curtain. When she was 13, 14 and 15, he stood by the bathroom door while she was showering and tried to talk to her. The shower at that time was protected by a glass door instead of a curtain. He would tell her to hurry up or to do a chore after she showered. She told him he could talk to her with the door open a crack, but he ignored this and opened the door all the way. V.C. felt violated. This happened about once a week.
Pacheco walked around the house naked when M.P. was asleep and sometimes entered rooms where V.C. was. The last time this happened, V.C. was asleep when Pacheco walked in and he jumped on top of her. She got angry and pushed him off, and he got angry in return.
V.C. testified that Pacheco showed her pictures of young women on his phone who had no shirts on. Pacheco’s cell phone was set to display a picture of a topless woman whenever M.P. called him. He would show the picture to V.C. and laugh.
The evening V.C. disclosed the abuse, M.P. contacted Pacheco by text message and told him not to come home that night. M.P. testified about the series of messages that passed between her and Pacheco over the next few days, and screen shots of the messages were admitted into evidence.
The sequence of text messages began with M.P. saying “I found out some things” and telling Pacheco he should go to a hotel for the night. At first, Pacheco did not understand and said he was going to sleep in his own bed. M.P. wrote, “[P]lease give us some space.” Pacheco replied, “Give who some space [?]” “Me and [V.C.],” wrote M.P. Pacheco wrote that he did not want to play games, and M.P. replied that it was not a game.
By the next morning, Pacheco understood he was being called to account for his conduct toward V.C. He wrote: “I need to come home[, M.P.] I don’t know what to do. I will do anything. Please [, M.P.] [¶] You’re everything I have. Please [, M.P.] I’m really scared. [¶] How is [V.C.] doing? Please tell her I’m sorry for everything[.] [¶] Please tell me what you want me to do[.]” M.P. answered that he should continue to stay away. She also wrote, “I need you to see a counselor for your sex addiction.”
Later that day, M.P. wrote to ask, “[W]hen did this start? How old was she?” Pacheco replied that he did not remember, but it was after they moved to Tulare County. He wrote that it never happened in Los Angeles. He also wrote that the last time was before their son was born. M.P. answered that she did not think he was being completely honest. She asked, “What exactly happened in your words?” Pacheco wrote:
“I can’t explain it[, M.P.,] bc I don’t understand it myself. I know I touched her inappropriately. I don’t know why. There was no reason for it. There is no excuse for it. [¶] I don’t think I can ever explain it to you so that you understand.”
M.P. asked, “Did you make her touch you?” Pacheco answered: “Yes and I’m ashamed of it [, M.P.] I’m sorry to you and most importantly to [V.C.] None of the things I did should have ever happened[.]” M.P. asked when he made V.C. touch him. Pacheco wrote that he did not remember, but it was during the time when they lived in Tulare County. She asked what specifically he made V.C. do. He replied, “I don’t think it was more than a touch,” and “[t]here was never any masturbation if that’s your question.” He went on:
“I don’t know how to explain to you how I had her do things knowing they were wrong and then regretting it every time. I knew it was wrong at the time but I felt compelled to continue. I never felt good about it. I can’t explain it to you so you understand [, M.P.]”
M.P. asked where he touched V.C. Pacheco answered, “Her butt and boobs[.]” M.P. asked if he had done anything similar to his other daughter. Pacheco wrote, “[I]t’s only been [V.C.] No one else. [¶] I don’t know why. [¶] She deserved better from me and I’ve realized how much I let her down. [¶] It’s not your fault or hers [, M.P.]”
M.P. responded to this by writing that she had trusted Pacheco and he had hurt all of them. Pacheco replied, “I know I have [, M.P.] I know. I betrayed everyone’s trust. And I do understand it. And I do accept blame. I just hope for yours and hers forgiveness. I want a chance to make things right with everyone.”
In addition to the text messages, two email messages from Pacheco to M.P. were admitted into evidence. One was dated the day after the abuse was disclosed. In it, he stated he was sorry he let V.C. and M.P. down and did not know why he did what he did. He wrote, “I can’t imagine what she or you are going through,” and “I wish I could take all of my actions back but obviously it’s too late for that. All I can ask from her and you is to forgive me for what I’ve done.” The second email message is dated a week after the first. Pacheco wrote that he was going to turn himself in that day. He again apologized, said he never meant to hurt anyone, and hoped he would be forgiven someday.
In the course of these exchanges of text and email messages, Pacheco consistently stated he had done wrong knowing it was wrong, and never claimed he had been roughhousing or otherwise acting with innocent intentions. The closest he came to saying anything of that kind was some remarks made by text message the Monday after the abuse was disclosed, to the effect that he might not fully appreciate how bad his behavior was: “And maybe I don’t fully understand what I’ve done. Maybe I’m too fucked up in the head to realize the severity of it. I just don’t know [, M.P.] And I think that’s what I told you before. I know I hurt her bad but maybe I’m too fucked up to fully understand.”
A recording of a telephone call Pacheco made to his sister from jail was played for the jury. Pacheco’s sister asked him if he remembered the occurrence of any of the things he was accused of. He said, “There’s so much shit going on in my life during that time that I, I cannot remember that all happened.” The sister mentioned that the allegations went back to when “she was little.” Pacheco said, “I don’t … I remember five years back. [¶] … [¶] That’s it, and I told her that.” The sister asked if he was saying the allegations from other times were fabricated. Pacheco said he did not know. He mentioned a time when he was sick, and said that since they moved to the house in Tulare County, he was experiencing job stress and working long hours. Finally, the sister asked, “You believe, you believe, okay, so you, believe the majority of this is being, is being made up?” Pacheco did not say he believed this. Instead, he answered, “I have, I have to look at the dates.” The recording ended there.
During her testimony, M.P. described a box she found in a closet in the house after the abuse was revealed. It contained “some handwritten stuff he’d written” and “a lot of porn,” among other things. One item shown to the jury consisted of some pages in Pacheco’s writing, discussing ways in which the reader can take sexual advantage of others, always referred to in the document as victims. The reader is assumed to be a woman pursuing female sex partners, and is assumed to share the author’s predatory objectives. Twelve pages of this writing were admitted into evidence. The material is divided into numbered sections and appears to include portions of two “chapters.” Here are some samples from the document. (Spelling and punctuation are uncorrected, but the samples are not reproduced in all-capitals, as in the original.)
“6) Ending a relationship
“The best time to catch a victim is when she is trying to get over a bad breakup. Being a good friend always gets you brownie points. And lending a friendly ear is one of the best ways to get laid. Just sit back, listen to the sobb stories and act like youre paying attention. Showing compassion is only needed temporarily. This will be the most work you will have to do. It might seem trying at times, but dont worry, this is only temporary. If the victim is a piece of ass, the end result is very rewarding. A note of caution: Try not to show that the hard luck stories are getting old, this might make the victim think twice about letting you in.”
“8) Bad mother relationship
“This one is tricky also. If you are a seasoned pro, you know that victims that had a bad connection with their mothers are already attracted to you like a magnet. If you are not a pro, you will have to research extensively. Psychological books are the best. Try books on bi-polarism or manic depressives. Women who have had bad mother relationships usually fall into one of these categories. Remember if their mothers were not around emotionally through your victim’s developmental stages, they will spend the rest of their lives looking for a mother figure. Dont let this worry you too much. Victims who need a mother figure at an older age are willing to give you just about anything, and everything in exchange for the love and affection that they did not recieve as a youngster. This again is why pedafiles are so successful. The pedafile’s victims usually dont have the parental guidance they crave, and in turn give in to any adult advances.
“Again, do your homework, your victim probably has a certain skeleton in her closet that was brushed off by her mother. Be a mother to your victim and she will fall under your control instantaneously.”
“Chapter Two: The Seduction
“When approaching your victim, you need to remember why you chose her. Aside from all of the traits that your victim has to have, you can never lose focus on task one, getting a piece of ass, and using it until youre bored and done. You will make her ultimately believe that you care for her and love her unconditionally until you die. Of course you will not feel that way and will only abuse your victim, but that is only because she is used to that and wouldnt have it any other way.”
In addition to the box in the closet, M.P. found a locked box in the garage that belonged to Pacheco. It contained pornographic CD’s and other items. M.P. gave the CD’s to Khoua Lopez, an investigator with the district attorney’s office. Lopez testified that she examined the CD’s and found about 2,700 pornographic images and videos. Of these, 85 had titles including the word “teen.” She gave five examples of the titles she saw: “Teen Sex, Hot Teen, Teen Thumbs, Creamy Teen, Lesbian Sex.”
Pacheco testified in his own defense. He had listened to V.C.’s testimony and replied “[a]bsolutely not” when asked whether there was any truth in her allegations. He said no when asked whether he touched her or made her touch him anywhere “even remotely sexual.” Asked about touching her breasts, he said he did this only when “roughhousing,” and only when she “hadn’t developed anything yet, any breasts.” He said he, M.P. and V.C., when roughhousing, each would grab the nipples of the others and twist them. Similarly, he touched V.C.’s buttocks only when roughhousing. “I would either slap her butt or punch her butt or sometimes I would—if her underwear was sticking up above her pant line, I would grab it and give her a wedgy. That’s something we always did, you know. Just messing around and she never objected to anything like that.” Sometimes V.C. initiated the roughhousing. Pacheco testified that all behavior of this kind ended before the birth of the son he had with M.P. The son was born in 2011, when V.C. was 11 years old. Pacheco also testified, however, that V.C. initiated some roughhousing just before M.P. kicked him out of the house. He said she touched his chest, and this “initiated a tickle session.” Pacheco denied ever touching V.C.’s vagina. He said the closest he ever came to doing this was tickling her hipbone or ribcage.
Pacheco testified that he and M.P. had been having martial difficulties for several years before his arrest. They had conflicts over his working on the weekends. They disagreed about having more children. He said, “[t]he sex was nonexistent. I counted sex with her last year four times and that was it.” When M.P. first told him by text message not to come home, he thought she was leaving him and that this was the culmination of their difficulties. He had no idea she was referring to sexual abuse of V.C.
During his direct examination by defense counsel, Pacheco attempted to explain his exchange of text messages with M.P. He said he did not believe at that time that he had touched V.C. inappropriately. He wrote that he was sorry “[b]ecause I was given a depressant at the time, and I hadn’t been home in a week, and I thought my marriage was over.” On cross-examination, the prosecutor confronted Pacheco with several of his specific statements in the text messages: He said he touched her boobs and butt; he stated that he knew he touched V.C. inappropriately and there was no excuse for it; he admitted he made V.C. touch him, he was ashamed of this, and it should not have happened; he did things to V.C. he knew were wrong and regretted them every time. Pacheco admitted he wrote these things, but said, “I was just trying to tell [M.P.] whatever she wanted to hear at that point. Like I said, I did not want my marriage to end and I wanted for her to help me.” Pacheco also testified that at the time of these communications, his “mood [was] very dark,” he was “not in the right state of mind for anything,” and he had “no idea what [he] was doing.”
Pacheco admitted he wrote the handwritten document that had been admitted into evidence. He said this was a product of therapy he underwent at the time of his divorce from his first wife. The therapist “said part of the grieving process is to write something in anger to your wife.” Pacheco told the therapist he was “not the type of person” to write something in anger, but the therapist insisted that he had “to do something like that to get it out of your system.” Pacheco claimed the document was the result of that process. He said it was not intended to be directed toward children.
Pacheco also admitted the pornography was his and some of it had the word “teen” in the titles, but he said it was all legal. There was no child pornography.
The jury found Pacheco guilty as charged. It found true the special allegations on counts 1 and 2.
The court imposed a total sentence of 25 years four months, calculated as follows: On count 1, the middle term of six years; on each of counts 2 through 9, two years consecutive, equal to one-third of the middle term; and on each of counts 10 through 14, eight months consecutive, equal to one-third of the middle term.


DISCUSSION
Before trial, the People made a motion in limine that included requests for the admission of the evidence now at issue. The motion argued that the handwritten document was relevant “to show the defendant[’s] mind set and intent regarding the present charges.” Regarding the pornography, the motion stated that some of the “images depict barely legal age looking females” and some of the titles included the words “teen,” “teenage” or “teenager.” The People argued that the “title[s] and the fact that the females are portrayed to be in their teens is relevant to the present charges. It goes to prove the defendant[’s] intent.”
At the hearing on motions in limine, the court first addressed the handwritten document. Defense counsel argued that this item was inadmissible because the only relevance it had was as support for claims that Pacheco had a propensity to engage in sexual predation and had acted in conformity with this propensity in committing the current offenses. The court replied:
“It’s 1101(b) evidence because what you have here is an allegation that the defendant has victimized a young girl, and he has a manual and references to how to pick out a victim. I think it’s very, very probative and certainly outweighs any prejudicial value under 352 because that’s exactly what’s alleged to have happened here.”
Defense counsel pointed out that the document did not reference young girls or any kind of illegal behavior. The prosecutor agreed, observing that the document “talks about a lesbian kind of thing,” but pointed out that it also “talks about how to use your victim, how to befriend them, how to get them to do what you want.” The court responded: “That, to me, is what a sexual predator or child molester does, he figures out how to target his victims. This is a manual to do that. It has probative value.”
The court then turned to the pornography. The prosecutor explained that the material she wanted to present to the jury was a list of titles of pornographic works found among Pacheco’s possessions by his wife. Some of the titles referred to teens, and it was these—the titles, not the pornographic works themselves—that the prosecution sought to have admitted into evidence. “[T]his goes to his intent that he’s into younger girls,” the prosecutor said. Defense counsel replied that there was no evidence any of the pornography used underage actors or was otherwise illegal. He said it should be excluded as character evidence. The court ruled that evidence of the titles was admissible. “[I]t goes to an unnatural sexual interest by your client in young females under the age of consent, and I think it has probative value,” the court stated.
Pacheco now argues the ruling was erroneous, again saying the evidence should have been excluded under Evidence Code section 1101, subdivision (a). We review the ruling for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Kipp (1998) 18 Cal.4th 349, 369.)
Evidence Code section 1101 provides:
“(a) Except as provided in this section and Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
The Law Revision Commission comments on this section state three general reasons why character evidence is usually inadmissible. (The commission discussed these reasons in the context of civil cases, but they are reasons for usually excluding the evidence in criminal cases as well.) “First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and punish the bad man because of their respective characters. Third, introduction of character evidence may result in confusion of issues and require extended collateral discovery.” (Cal. Law Revision Com. com., 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foll. § 1101, p. 221. Italics added.) The commission further explained that under subdivision (b), the section “does not prohibit the admission of evidence of misconduct when it is offered as evidence of some other fact in issue, such as motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident.” (Id. at p. 222.)
Our Supreme Court has explained how Evidence Code section 1101 applies to the admission, in a criminal trial, of evidence of crimes committed by the defendant other than the crimes for which the defendant is being tried in the current proceeding:
“Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.)” (People v. Kipp, supra, 18 Cal.4th at p. 369.)
This discussion is framed in terms of prior uncharged offenses, but the statutory language does not have such a limitation, and other cases make it clear that the same principles apply to prior conduct in general. (People v. Harris (1978) 85 Cal.App.3d 954, 958; People v. Wills-Watkins (1979) 99 Cal.App.3d 451, 456, fn. 1.)
To guard against evidence of prior crimes influencing juries in an impermissible way (i.e., by encouraging them to find the defendant guilty because he has a propensity to commit crimes), the Supreme Court has developed a requirement that an uncharged offense must bear enough similarity to the charged offense to make the uncharged offense relevant for a permissible purpose, such as showing identity, common scheme or plan, or intent: “Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp, supra, 18 Cal.4th at p. 369, italics added.)
Different degrees of similarity are required for the different permissible purposes:
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result … tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act .…’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]
“A greater degree of similarity is required in order to prove the existence of a common design or plan.… [I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citations.] [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.… [¶] … [¶]
“The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, italics added.)
Even when evidence is relevant under Evidence Code section 1101, it must be excluded under Evidence Code section 352 if its prejudicial effect substantially outweighs its probative value:
“Our conclusion that section 1101 does not require exclusion of the evidence of defendant’s uncharged misconduct, because that evidence is relevant to prove a relevant fact other than defendant’s criminal disposition, does not end our inquiry. Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ [Citation.] [¶] … We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] … create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
In this case, what we have is simply not similar conduct at all. The idea behind the similar-conduct requirement for proof of intent via prior conduct is that the prior actions were sufficiently similar to support an inference that they likely were done with the same intent. In other words, if the conduct went along with a certain intent in the prior instance, like conduct probably went along with the same intent in the current instance. In this case, the challenged evidence was proffered by the prosecution, and accepted by the court, because it tended to show Pacheco had a mental state comparable or related to the intent required by the current offenses. (The required intent under section 288 is “the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the perpetrator] or the child.” (§ 288, subd. (a).) But Pacheco had that mental state while he was engaged in different conduct entirely. The conduct of writing a malicious document about women sexually victimizing other women, or of viewing pornography featuring actors represented as teenagers, does not have features in common with the conduct of molesting a child. The comparison of acts to see if they have similar features thus does not get off the ground. Without that comparison, we can only say Pacheco had a mental state similar or related to the necessary intent while engaged in other types of unsavory behavior on other occasions. The inference from this to guilt of the charged offenses would be the sort of inference Evidence Code section 1101, subdivision (a), prohibits: finding a defendant committed a crime because, given his character or propensity as shown by prior instances of his conduct, it is the sort of thing he is likely to do. The evidence therefore was not admissible.
We turn to the question of whether the error was prejudicial. The standard of People v. Watson (1956) 46 Cal.2d 818 applies: We must determine whether a result more favorable to the defendant would have been reasonably probable if the evidence had been excluded. (People v. Malone (1988) 47 Cal.3d 1, 22 [Watson standard applies to analysis of erroneous admission of prior-crimes evidence]; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019 [same].) Pacheco contends the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, applies because his due process right to a fair trial under the federal Constitution was infringed, but the above authorities are to the contrary. (See People v. Falsetta (1999) 21 Cal.4th 903, 912-922 [admission of propensity evidence under Evid. Code, § 1108 does not offend due process principles].)
The potential prejudice is that the evidence could have undermined Pacheco’s claim that to the extent he touched V.C., he did so with innocent intentions while roughhousing, and also that the jury’s feelings against him could have been inflamed by the offensive nature of the evidence. But the notion that these possible effects were prejudicial is decisively undermined by the character of Pacheco’s communications with M.P. after the abuse was revealed. The jury was made aware of Pacheco’s statements to the effect that he touched V.C.’s breasts and buttocks inappropriately, made V.C. touch him inappropriately, knew it was wrong, and regretted it every time. His efforts in his testimony to square these statements with his claim of innocent intent were incoherent and unpersuasive. There is little likelihood that a jury exposed to this evidence would have returned a different verdict if only it had not also been exposed to the handwritten document and the pornography evidence.
Contrary to Pacheco’s argument, this is not really a he said/she said case, i.e., a straightforward credibility contest. Instead, it is a case of she said, he confessed to his wife before the authorities took over, and then he recanted his confession on the witness stand. Certainly the challenged material placed Pacheco in a negative light, and the jury might have been slightly more inclined to believe the retraction of his confession without that evidence. But the confession was compelling, the retraction was not, and on the whole we do not think excluding the material at issue would have been enough to make a difference in the verdict, under the reasonable probability standard.
DISPOSITION
The judgment is affirmed.


SMITH, J.
WE CONCUR:



LEVY, Acting P.J.



POOCHIGIAN, J.