Filed 4/27/18 P. v. Milutinovich CA4/3
Received for posting 4/30/18





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BRIAN MILUTINOVICH,

Defendant and Appellant.


G054404

(Super. Ct. No. 15WF2473)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Affirmed as modified.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Brendon W. Marshall, and Chris Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Michael Brian Milutinovich of attempted lewd act on a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a); count 1), and arriving at an arranged meeting place for the purpose of lewd activity with a minor (§§ 288.4, subd. (b); count 2). The court sentenced defendant to the upper term of four years on count 2, and imposed a consecutive one-year term on count 1.
Defendant argues the court abused its discretion by admitting evidence of prior uncharged sexual offenses, and the court violated section 654’s prohibition against double punishment by imposing a consecutive one-year term on count 1.
We conclude the court properly admitted three instances of prior uncharged sexual offenses. The Attorney General concedes the court’s sentence violates section 654, and we accept the Attorney General’s concession. We modify the judgment to impose a section 654 stay on count 1. In all other respects, the judgment is affirmed.
FACTS
On October 31, 2015, Holly S. advertised on Craigslist for financial help for her and her 13-year-old daughter. She received an e-mail response from defendant during the morning hours of November 6.
Defendant introduced himself as a “[g]enerous white guy,” and he asked if Holly S.’s family was “perv friendly for the right amount of cash?” Holly S. responded, “yes, we are still in need. But if it’s for something stupid, then sorry.” Defendant responded, “How old is the daughter, thirteen?” Holly S. replied, “Yes, she is. And I was wondering if [you’re] going to be able to help us. It’s me, my daughter, brother, and sister.” Defendant answered, “Could I watch your daughter change clothes if I help you all out financially?”
Defendant’s question prompted Holly S. to contact the Garden Grove Police Department. She met Garden Grove Police Detective Lea Kovacs. Holly S. showed Kovacs her Craigslist advertisement, and her subsequent e-mail exchange with defendant, and she gave Kovacs her e-mail address and password.
At around 12:30 p.m. the same day, Kovacs, using Holly S.’s e-mail account, responded to defendant’s question with, “I’m not sure. What did you have in mind and how can you help us financially?” Defendant replied, “I can provide cash to see your daughter get naked for me. What is your family race?” Kovacs continued, “We are white. How much cash? Just watch her?” Defendant rejoined, “Let me know how much cash would be fair to see her get naked in person. I do want to make sure that I can trust you guys. Could you provide a recent sexy photo of her?”
Kovacs wrote, “I don’t know. I have never done anything like this before. What do you usually pay for something like this?” A few minutes later, she sent, “I’m really nervous about this. I have never done anything like this before and I don’t know who you are. Can you send me a photo of you so I know who I’m talking to? I want to make sure I can trust you.” Defendant replied, “I am a young, late 20’s, attractive white guy. I won’t provide my photo. I can meet you in person before I meet your daughter. I am obviously attracted to young girls but I’m actually normal, nice guy otherwise. I do want to see a photo of her prior to meeting you. As far as the money is concerned, we can work it out.” Kovacs told defendant she only had her daughter’s school photograph, nothing “sexy,” and she did not want defendant to share the picture with anyone. Defendant responded, “I will not share it with anyone.”
About 40 minutes later, Kovacs e-mailed defendant and told him she could not send him a photograph of her daughter. Defendant asked Kovacs to describe her daughter and decide when they should meet. Kovacs responded, “[s]he has brown hair and brown eyes. She is a very pretty young girl. I can meet you tomorrow.” Defendant replied, “Saturday night will work. Curious. Do you think she’ll be comfortable around an attractive adult male?”
Kovacs did not respond to defendant until early the following morning. Kovacs then e-mailed defendant and told him “[her daughter] might be nervous. Can you bring like a six-pack of beer to help relax her? Let’s meet at the Taco Bell at like 7:00 or 7:30 tonight at Beach and Garden Grove behind the Chevron? Then we can walk to the hotel. If you are planning anything else but afraid to say, just make sure you have protection. What kind of car will you be in, and how will I know it’s you? What should I call you?”
Defendant replied that afternoon. He said, “Good questions. I did have another question I need answered first. Is she mixed as in half-white or half-Hispanic or half-black?” Kovacs responded, “She is half Hispanic.” Defendant replied, “Thanks. I like your approach but you’re a little too direct. It’s possible that you and your brother don’t like my kind and that you are out to get me. How do I know that I can trust you and him? A pic of your daughter’s tits would calm my concerns.”
Kovacs repeated that she could not send a picture to defendant. She explained, “I haven’t told my brother about this. He will not be around. I prefer to keep this private. I can’t send photo. Sorry. I don’t have enough data.” A few minutes later, Kovacs sent the following message: “I feel like you’re playing me because, you know, we’re desperate. You said you could help us. This was your idea. I can’t tell my fam about this.”
About 90 minutes later, defendant responded, “I am quite nervous about working out a deal. I’m just nervous about the situation, especially since you can’t even send a pic to prove that you’re okay with this.” Kovacs replied, “Well, I can’t send pics because of my phone. I can show you a pic of her when we meet. And if I feel like I can trust you and you won’t hurt us, then you can meet her. I’m nervous, too, and I am a little bit scared because you didn’t send a photo too. I made arrangements so my fam won’t be around tonight, but I need money. So I’m not going to wait around for you if you’re not serious tonight.”
Around 7:00 p.m., defendant e-mailed Kovacs and asked, “Are we meeting at the location you mentioned? Is she a virgin?” Kovacs responded, “Yes, she is a virgin. Let’s meet at 8:00. How will I know it’s you?” Defendant replied, “Is there a phone number that I can reach you at? I’ll call you to let you know that I’m there and approaching you. I’ll be honest, the fact that she is a virgin is something that actually scares me. Hopefully she has been somewhat sexual, like first, second, or third base.”
Kovacs continued, “Can you tell me what car you’re in or what I should call you? I don’t want to be approached by someone scary.” Defendant quickly responded, “Josh is my name. If I was scary-looking, I wouldn’t do this. My biggest concern is that your daughter hasn’t been sexual at all. I am good-looking but I don’t want her to be uncomfortable.”
Kovacs sent a series of e-mails in reply. First, Kovacs asked what defendant would be wearing. Then, she told him, “[her daughter] is not completely inexperienced[,]” and she gave defendant her phone number. Finally, Kovacs sent, “And don’t forget some booze.”
After sending her last message, Kovacs gathered some detectives and went to a Taco Bell in Garden Grove. Another police officer responded when defendant e-mailed, “Is she thin or chubby or heavy? Be honest.” The officer replied, “She is thin like me.”
Kovacs, dressed in plain clothes, took her cell phone and went inside the Taco Bell. Additional officers were stationed inside and outside the Taco Bell. While Kovacs waited, she received a phone call from a man identifying himself as “Josh.” He told Kovacs he would be late and he had additional questions. He accused Kovacs of lying to him because he had seen a photograph of her on Facebook and she was not thin. He expressed the belief he was being set up, although he did not specify for what.
The caller asked Kovacs to describe herself, which she did, and they agreed to a price of $100. He wanted Kovacs to call him in about 20 minutes. About 20 minutes later, Kovacs called the number given and the voice at the other end said he was close. He asked Kovacs to call him back in 10 or 15 minutes. The caller said he would be wearing a gray shirt.
When Kovacs called back about 15 minutes later, the recipient said he would be walking up to the Taco Bell in a few minutes. A few minutes later, Kovacs saw defendant, clad in a gray shirt and black shorts, walk up to the Taco Bell entrance and look inside. He stared at her for about 30 seconds. Defendant walked around the building, but he kept his eyes on Kovacs.
Eventually, defendant walked away from the Taco Bell and toward a nearby gas station. However, he soon turned around, walked back to the restaurant, and resumed standing outside and starring at Kovacs. After a few minutes, defendant shook his head from side to side and walked away.
Defendant was detained by Garden Grove police officers. He had a small bottle of mango-flavored vodka and $100 in cash on his person, and Kovacs recognized defendant’s voice as the voice of Josh.
Detectives found defendant’s identification and a cell phone in his car, although the cell phone in defendant’s car had not been used to communicate with Kovacs. Defendant initially gave Kovacs a false address, but she eventually determined he lived in Chino Hills. Kovacs and other police officers searched defendant’s Chino Hills apartment. They found two additional cell phones, including the one used to contact Kovacs (Kovacs cell), two desktop computers, a laptop computer, defendant’s social security card, and a bank statement in his name. One of the cell phones at defendant’s home had directions to the Garden Grove Taco Bell.
Kovacs requested forensic technicians search defendant’s computers for Craigslist advertisements, e-mail chats, Google searches, and child pornography. The technicians found over 2,400 images of child pornography and child erotica. In addition, defendant made numerous searches on Craigslist for “daughters, mothers, men for women, kids, diapers, toddlers,” “homeless, desperate, [and] homeless girl,”
1. Uncharged Sexual Offenses
a. Internet Chat
Forensic technicians also found a May 2014 Internet chat between defendant, using the screen name, “Soreback222,” and “Tim_daily25.” Defendant placed some kind of advertisement, and Tim_daily25 responded. Defendant exchanged messages with Tim_daily25 for about three hours, and most of the messages were about Tim_daily25’s 13-year-old daughter.
For instance, defendant asked Tim_daily25 if his daughter would “be fine with the idea of giving a new friend a massage?” Defendant offered Tim_daily25 money, because he was sure a single father and his daughter would need it. Defendant described himself as “white . . . tall and thin . . . very attractive.” Because Tim_daily25 seemed reticent at times, defendant frequently suggested they meet at a restaurant or liquor store to get to know each other. However, there was no evidence the meeting took place.
b. Joshua B. Phone Call
In August 2013, Joshua B. placed a Craigslist advertisement. Joshua B. was looking for a room to rent, and he had included a picture of himself and his two-year-old daughter in the advertisement. Defendant contacted Joshua B. He used the Kovacs cell phone later confiscated from his apartment.
Defendant told Joshua B. he did not have a room to rent, but he did have a job Joshua B. could do. Joshua B. mentioned that he previously worked in construction. However, defendant wanted to know if Joshua B. was interested in doing something other than his usual occupation. Joshua B. said he might be interested, but it depended on the job. Defendant was evasive about the nature of the job, which made Joshua B. nervous.
Joshua B. started to guess at what defendant wanted. He asked if defendant waked to see Joshua B. naked, or have Joshua B. do “some like porn thing.” Defendant replied no. Defendant suggested meeting in person. Joshua B. declined, because he started to feel “weird.”
Joshua B., again, tried to guess what defendant wanted. This time he asked defendant if he wanted something from Joshua B.’s two-year-old daughter, and he even suggested “the unthinkable,” which was allowing defendant to see his daughter naked. Defendant said, “Yes.” Joshua B. replied, “You’re a creep,” and he immediately called the Anaheim Police Department.
Anaheim Police Detective Dave Depriest went to defendant’s last known address, a home in Yorba Linda, to interview him about the Joshua B. phone call. A resident of the address told Depriest defendant no longer lived there, but Depriest left his business card with a message for defendant to contact him. Defendant called Depriest the following day. Depriest recorded their conversation, and the recording was played for the jury.
During the call, Depriest asked defendant if he had recently responded to a Craigslist ad. Defendant hemmed and hawed, and he asked Depriest for more details. Depriest explained, “four days ago, you called . . . about an Ad in Craig’s List . . . looking for a room, he’d pay five, four hundred dollars a month for a room, he said he had a little girl. And you called him about it.”
Defendant would not confirm or deny making the call. He told Depriest he could not remember what he had done in the past five or six days because he had a lot going on. Depriest told defendant to check his recent call history. Defendant said he was unable to check his call history, and he said he could not remember making such a call.
Depriest explained why he contacted defendant. He asked defendant about an offer to pay $500 to see an underage girl naked. Defendant demanded to know who had made the allegation. Depriest declined to reveal the complaining party’s name. Depriest said, “I was just hoping you would remember four days ago if you looked at Craig’s list and made a phone call . . . to somebody . . . .” Defendant responded, “Well, here’s, here’s what I can tell you about my, my personal life. Um my last relationship . . . ended was back in uh it was January. I had a girlfriend, perfectly of legal age, early twenties, um she had a daughter of her own so if something is . . . being implied here that’s . . . way off base. I mean, I don’t know what to tell you, I mean, I’m actually in the process of getting ready to join another dating site. Um, you know, I’m into women, you know, adult grown woman.”
Depriest told defendant he had not been accused of any crimes, although the phone call to Joshua B. had been suspicious. Defendant said, “I think the only issue I really have in my life Detective is every now and then you know, I might have a drink” like any other 30-year-old guy. When Depriest asked defendant if he might have drunk too much to remember making a phone call, defendant responded, “You know what that’s possible . . . .” Depriest asked for defendant’s address. Defendant said he could not remember his physical address. He told Depriest he would call back with an address. Defendant provided Depriest with his address, but no charges were immediately filed.
c. Child Pornography and Child Erotica
The court admitted 10 of the over 2,400 images of child pornography and child erotica found on defendant’s computer. The photographs were not handed to the jury, but they were available for the jury’s use during deliberations.
Instead, Kovacs described the photographs for the record: a female child in the act of forcible copulation with an adult male while a second female child holds the first child’s hands behind her back and pushing the child onto the adult male (exhibit 13a); an adult inserting a finger into the vagina of a two-year-old female child (exhibit 13b); an adult male grabbing a small boy’s penis (exhibit 16a); two young girls orally copulating an adult male (exhibit 16b); a female toddler with an adult male’s erect penis on her vagina (exhibit 16c); an image of an erect adult male’s penis in a female child’s anus (exhibit16d); a naked female child holding a blanket behind her back (exhibit 16e); two photos of naked female children (exhibits 16f & g); and a female child exposing her vagina (exhibit 16h).
DISCUSSION
1. Uncharged Sexual Offenses
Defendant asserts the court committed reversible error by admitting evidence of his uncharged sexual offenses. Specifically, defendant argues Joshua B.’s phone call, his Internet chat with Tim_daily25, and his possession of child pornography and child erotica were “particularly inflammatory and had little probative value.” We disagree for reasons set out below.
a. Background
The prosecution moved to admit the three instances of uncharged sexual offenses mentioned above, primarily as proof of intent, citing Evidence Code sections 1101, subdivision (b), and 1108. Defendant objected and moved to exclude the uncharged sexual offenses on grounds evidence of the uncharged sexual offenses would be far more prejudicial than probative. (Evid. Code, § 352.)
The court ruled evidence of defendant’s previous use of Craigslist to contact Joshua B., and his Internet chat with Tim_daily25, which appears to have also originated with a Craigslist ad, were admissible under Evidence Code sections 1101, subd. (b) and 1108. The court noted the marked similarity between the uncharged and charged crimes made this evidence particularly probative of defendant’s intent.
The child pornography and child erotica was another matter. First, as the court observed, “possession of child pornography” was not part of the People’s case, and the photographs “would be highly inflammatory and perhaps exclude[able] [under Evidence Code section ]325.”
After lengthy debate on the topic, the court directed the prosecutor to select no more than 10 photographs from the over 2,400 images available, and then share the selected photographs with defense counsel during an upcoming break.
When court reconvened, defense counsel objected to the prosecutor’s 10 selected photographs on Evidence Code section 352 grounds. The court overruled the objection without comment.
b. Relevant Law & Standard of Review
Although character evidence is generally inadmissible (Evid. Code, § 1101, subd. (a)), there are exceptions. Character, or propensity, evidence may be admitted if relevant to defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident.” (Evid. Code, § 1101, subd. (b).)
As relevant here, Evidence Code section 1108 makes admissible evidence of a defendant’s uncharged sexual offenses when relevant to show his or her propensity to commit similar sex crimes, so long as the admission of this evidence does not violate Evidence Code section 352. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta)).
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).) The defendant bears the burden to demonstrate not only an error, but also that the error resulted in a miscarriage of justice. (Ibid.)
We review a trial court’s ruling under Evidence Code sections 1101, 1108, and 352 for an abuse of discretion. An abuse of discretion occurs when a trial court’s determination on the admissibility of evidence is made in an arbitrary, capricious, or patently absurd manner. (Rodrigues, supra, 8 Cal.4th at p. 1124-1125; People v. Branch (2001) 91 Cal.App.4th 274, 281-282.)
Here, defendant fails to demonstrate the court’s admission of uncharged sexual offense evidence was arbitrary, capricious, or patently absurd. In Falsetta, the California Supreme Court listed some of the factors a court should consider when deciding the admissibility of uncharged sexual offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) The California Supreme Court mentioned, “its nature, relevance, and possible remoteness [of the uncharged misconduct], the degree of certainty of [the uncharged misconduct’s] commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Ibid.)
In this case, the record shows the court carefully considered a number of the listed factors before deciding evidence of the Tim_daily25 Internet chat and Joshua B. phone call were more probative than prejudicial. In each case, defendant contacted single parents in financial distress via Craigslist, or something similar, and he offered money in exchange for sexual favors involving their children. As the court noted, the remarkable similarities between the three prior incidents made them highly probative of defendant’s intent. (Falsetta, supra, 21 Cal.4th at p. 917 [probative value of the evidence is increased by the relative similarity between the prior offenses and the charged offenses].)
Other factors also favored admission. The uncharged sexual offenses were not remote. They occurred a couple of years prior to the charged crimes. There was no doubt these incidents actually occurred, and presentation of this evidence was brief and uncomplicated. In short, we find nothing arbitrary, capricious, or patently absurd in the trial court’s admitting evidence of defendant’s Internet chat with Tim_daily25, or the Joshua B. phone call, to prove his propensity to commit the charged sexual offenses. (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
Defendant argues there is a “fundamental and substantive difference between a prurient interest in teenage girls, compared to toddlers and infants.” He asserts the difference in age rendered the Joshua B. incident “significantly more prejudicial than probative.” We disagree.
The differences in ages between Joshua B.’s two-year-old daughter and the 13-year-old girl involved in the instant case was one factor for the court to consider, but defendant fails to demonstrate the court abused its discretion by deciding to give more weight to other factors. In addition, Tim_daily25’s daughter was the same age as the minor girl involved in the instant case.
Defendant also asserts his internet chat with Tim_daily25 “lacked any independent source of evidence,” but there is no requirement evidence of uncharged offenses committed by the defendant be proven with independent evidence. (See People v. Ewoldt (1994) 7 Cal.4th 380, 407-408.)
Defendant further contends the fact his uncharged sexual offenses had not resulted in convictions may have tempted the jury to convict him of the charged offenses based on his prior activity. Again, this is a valid consideration. (See Falsetta, supra, 21 Cal.4th at p. 917.) But again the court’s conclusion the marked similarities between defendant’s Internet chat with Tim_daily25, the Joshua B. phone call, and the charged offenses weighed in favor of admission, and nothing in the record indicates the jurors were confused or misled about the charges.
With respect to the admission of child pornography and child erotica, defendant argues the content of the e-mails Kovacs exchanged with the perpetrator “established unequivocally” the perpetrator’s lewd intent. Thus, the 10 photographs admitted at trial were only marginally relevant and exceptionally inflammatory. Defendant asserts he only contested identity, and the photographs were not relevant to that issue. We disagree with defendant’s assessment of the record.
Defendant made no stipulation, or concession, at trial on the issue of his intent. Generally, a “plea of not guilty puts in issue every material allegation of the accusatory pleading, except those allegations regarding previous convictions of the defendant to which an answer is required by Section 1025.” (§ 1019; see People v. Steele (2002) 27 Cal.4th 1230, 1243.) Absent a stipulation, the prosecutor must prove intent.
In addition, to prove a violation of either section 288, subdivision (a), or section 288.4, subdivision (b), the prosecution bore the burden to prove beyond a reasonable doubt defendant was motivated by an unnatural interest in children, and that his unnatural interest in children was a substantial factor in the commission of the crime. (People v. Fromuth (2016) 2 Cal.App.5th 91, 103.)
Although defendant does not acknowledge it, child pornography has been held to reflect an unnatural interest in children. (People v. Merriman (2014) 60 Cal.4th 1, 79-80; People v. Memro (1995) 11 Cal.4th 786, 864-865 (Memro).) We have reviewed the images. Photographs of children in sexually graphic poses, or involved in sexual activity with adults, are vile and repulsive to most people and in that sense highly inflammatory. The selected images represent a cross-section of lewd acts with children of various ages. While these images were undoubtedly damaging to defendant’s case, we cannot say the court’s decision to admit 10 photographs of child pornography and child erotica was an abuse of discretion. (Memro, at p. 865.)
Nevertheless, assuming the court erred by admitting the three instances of uncharged sexual misconduct, we conclude defendant has not demonstrated a reasonable probability of a different result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) This was not a close case. Defendant myopically viewed a jury question during deliberations as evidence the question of identity was close. However, there was ample circumstantial evidence linking defendant to the charged crimes.
Kovacs identified defendant’s voice as the person who had spoken with her on the phone. Kovacs had asked the person e-mailing her to bring $100 and some alcohol in exchange for watching a 13-year-old girl undress. Defendant had $100 in an envelope and a small bottle of alcohol on his person. Defendant came to the arranged place, at the arranged time, and he was wearing the right clothes. Any error in the admission of three instances of uncharged sexual misconduct was harmless.
2. Section 654
Defendant argues the court’s imposition of sentence on count 1 violated section 654. The Attorney General concedes the error, and we accept the Attorney General’s concession. The judgment will be modified accordingly.


DISPOSITION
The clerk of the superior court is directed to amend the abstract of judgment to reflect a section 654 stay of the sentence imposed on count 1, and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



GOETHALS, J.