P. v. McNatt

Filed 5/9/07 P. v. McNatt CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
PHILLIP WAYNE M C NATT,
Defendant and Appellant.
F050056
(Super. Ct. No. BF110424A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush and Louis P. Etcheverry, Judges.*
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leslie
W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Phillip Wayne McNatt of oral copulation with a child under 18
years of age (Pen. Code, § 288a, subd. (b)(1))1 and annoying a child under the age of 18
* Judge Etcheverry presided over the competency phase of the trial; Judge Bush
presided over the criminal trial.

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(§ 647.6, subd. (c)(2)). He argues his conviction must be reversed because (1) there was
not substantial evidence to support the jury’s finding that he was competent to stand trial
(§ 1367 et seq.); (2) the prosecutor committed misconduct during closing arguments
during the competency phase of the trial; (3) the trial court erred in admitting propensity
evidence pursuant to Evidence Code section 1108 during the guilt phase of the trial; (4)
the jury instructions for the use of propensity evidence violated his constitutional right to
due process; and (5) his aggravated sentence violated his Sixth Amendment right to a
jury trial. We reject each of these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Sixteen-year-old Mark P. considered 52-year-old McNatt a friend. The two often
spent time together. On the day in question Mark called and asked if McNatt wanted to
“hang out.” McNatt agreed and picked up Mark in his (McNatt’s) vehicle. The two
ended up at the Kern River after drinking some beer. While at the river, McNatt began
discussing pornography with Mark. McNatt proceeded to orally copulate Mark while he
(McNatt) masturbated.
The jury found McNatt guilty of the crimes identified above, the only charges in
the information. The trial court imposed an aggravated sentence of six years for the oral
copulation count, plus two years for two prior prison term enhancements admitted by
McNatt. (§ 667.5, subd. (b).) An aggravated sentence on the annoying the child count
(three years) was stayed pursuant to section 654.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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DISCUSSION
I. The Competency Proceedings
McNatt’s attorney filed a motion pursuant to section 1367 et seq. to suspend
criminal proceedings because McNatt could not understand the nature of the proceedings
against him and assist in his defense. The trial court appointed an expert to examine
McNatt. A trial was then held and a jury found McNatt competent. McNatt claims there
was insufficient evidence to support the verdict, and that the prosecutor committed
misconduct during closing argument.
A. Substantial evidence
The only witness to testify at the hearing was Ross Kremsdolf, the psychologist
appointed by the trial court to examine McNatt. Kremsdolf opined that McNatt was
incompetent. The jury necessarily rejected Kremsdolf’s opinion in finding McNatt
competent. McNatt argues that since the only evidence presented at the competency
hearing indicated that he was incompetent, the jury’s verdict was not supported by
substantial evidence. This argument reflects a misunderstanding of the proceedings in
the trial court.
A defendant is presumed competent unless the contrary is proved by a
preponderance of the evidence. (§ 1369, subd. (f).) It is defendant’s burden to establish
he is incompetent within the meaning of the statute. (People v. Marks (2003) 31 Cal.4th
197, 215.) In other words, the jury was required to presume McNatt was competent to
stand trial unless he proved by a preponderance of the evidence that he was incompetent.
Kremsdolf, the only witness, evaluated McNatt through a review of the records he
received and a two-hour interview, during which he completed an evaluation instrument
entitled “Evaluation Competency to Stand Trial Revised.” Kremsdolf found McNatt was
depressed and, as a result, did not feel participation in the process was important. McNatt
also demonstrated symptoms of paranoia when he stated he did not think his attorney
would properly represent him because his attorney was working with the prosecutor to

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convict him. Kremsdolf considered the possibility McNatt was so depressed that his
thinking became unclear, but he did not reach that conclusion.
Kremsdolf opined that McNatt was not impaired in his understanding of the court
proceedings, but thought he would have difficulty assisting counsel. McNatt understood
the judge’s responsibility during a trial and the roles of the different people in the
courtroom.
The tools used by Kremsdolf also suggested that McNatt may have been
malingering, although Kremsdolf did not reach that conclusion. Kremsdolf concluded
that on the day he interviewed McNatt, which was two and one-half months before the
hearing, McNatt was not able or willing to assist defense counsel sufficiently to receive a
fair trial. Kremsdolf specifically stated he could not say the same was true as of the day
of the trial, although he did not have any information that would change his opinion.
On cross-examination Kremsdolf stated, “When I put everything together, I came
to the feeling at that time that [McNatt] was not [competent to stand trial], but … there
was a question in my mind. I wasn’t 100 percent certain in any way.” Kremsdolf could
not determine if McNatt had any history of mental illness because McNatt “wasn’t very
open about such things.”
McNatt understood the purpose of the evaluation and was able to respond to the
questions posed. He was very defensive or guarded in his responses, and it appeared he
did not want to discuss the charged crimes, although he seemed to know them. McNatt
also lied about some things until confronted with documents that proved he was lying.
McNatt graduated from high school and has held gainful employment in the past. He did
not have any dependency problems that would impair his ability to assist with his
defense. It appeared at times that McNatt chose to answer some questions and not others.
Kremsdolf summarized his findings as follows: “[McNatt] presented himself as so
hopeless and defensive or paranoid about the motives of his attorney that he basically
saw no point in discussing anything with his attorney, saw no point in discussing with

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him any possibility of issues that might come up. I don’t know if they would come up,
but judgments about what to plead or those kinds of issues. So he just presented himself
as not doing that at all, those important things to be able to make choices, weigh issues,
decide what are positive and negative factors.”
This conclusion was impeached when it was pointed out that McNatt had urged
his attorney to seek a reduction of bail at the preliminary hearing, thus indicating McNatt
could assist his attorney if he chose to do so. At another point in the interview McNatt
stated he was willing to cooperate with his attorney. He also stated he wanted his
attorney to see him more often, that he wanted to speak with an investigator, and that his
attorney was supposed to help prove he was innocent.
Kremsdolf recommended that McNatt be evaluated by a psychiatrist for possible
depression, possible psychotic symptoms, possible medication, and evaluation of possible
malingering. Kremsdolf acknowledged there was a possibility that McNatt was faking
his symptoms, but he failed to do further tests on the issue. Various reports established
McNatt used manipulation to commit the various crimes of which he had been convicted
and accused.
Kremsdolf took into consideration McNatt’s history of deceit, manipulation,
criminal experience, lack of prior mental illness, and the possibility of malingering when
rendering his diagnosis.
This thorough review of Kremsdolf’s testimony convinces us that substantial
evidence supported the jury’s conclusion that McNatt was competent. (People v. Marks,
supra, 31 Cal.4th at p. 214.) While Kremsdolf was the only expert witness to testify at
the trial, his testimony was less than overwhelming.
First, an expert’s testimony is only as reliable as the facts on which it is based.
(People v. Marks, supra, 31 Cal.4th at p. 219.) The testimony established that Kremsdolf
had a limited basis for forming an opinion. First, he received limited background to
assist in his evaluation. Second, most of his opinion was based on his interview with

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McNatt, an interview where Kremsdolf described McNatt as lying, withholding
information, and guarded in his responses. The lack of a solid basis for forming an
opinion significantly weakened Kremsdolf’s opinion.
Moreover, Kremsdolf displayed a lack of conviction about the opinion himself.
At times he described his opinion as a “feeling … that [McNatt] was not” competent to
stand trial and went on to state, “there was a question in my mind. I wasn’t 100 percent
certain in any way.” This lack of certainty also manifested itself when Kremsdolf
admitted that McNatt might be trying to manipulate the system by faking his symptoms.
When these admissions are combined with the opinion that McNatt was not
competent because he was so depressed “or paranoid about the motives of his attorney
that he basically saw no point in discussing anything with his attorney,” it is easy to
understand why the jury rejected Kremsdolf’s testimony. This is especially so when
McNatt demonstrated his ability and willingness to participate in his defense when he
urged his attorney to seek a bail reduction. Obviously, McNatt was capable of
participating when he chose to do so.
The jury was not obligated to accept Kremsdolf’s opinion. There is ample
justification in the record to support the decision to reject it. These justifications provide
ample evidentiary support for the finding that McNatt was competent.
B. Prosecutorial misconduct
McNatt’s second argument related to the competency hearing is that the
prosecutor committed misconduct during closing argument.
“‘“The applicable federal and state standards regarding prosecutorial
misconduct are well established. ‘“A prosecutor’s … intemperate behavior
violates the federal Constitution when it comprises a pattern of conduct ‘so
egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves ‘“‘the use of deceptive or

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reprehensible methods to attempt to persuade either the court or the jury.’”’
[Citation.]” [Citation.]’ [Citation.]
“Regarding the scope of permissible prosecutorial argument, ‘“‘a
prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can
include reasonable inferences, or deductions to be drawn therefrom.
[Citations.] It is also clear that counsel during summation may state matters
not in evidence, but which are common knowledge or are illustrations
drawn from common experience, history or literature.’ [Citation.] ‘A
prosecutor may “vigorously argue his case and is not limited to
‘Chesterfieldian politeness’” [citation], and he may “use appropriate
epithets.…”’” [Citation.]’ [Citation.]
“Finally, ‘a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion -- and on the same ground -- the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety. [Citation.]’ [Citation.]” (People
v. Stanley (2006) 39 Cal.4th 913, 951-952.)
The prosecutor’s theme during closing argument was that McNatt was
malingering to delay the trial. At one point he argued, “So you have somebody who
commits crimes against children, who, if there is delay in going to court on the case, you
have the possibility of them not remembering some things or getting some things wrong.
The minutia, the devil is in the details. So you have that advantage. You have the
advantage of maybe they’re going to leave and disappear, not want to be contacted, not
want to testify after a long time. They want to put it behind them.”
At this point McNatt’s attorney objected because there was no testimony to
support the argument and moved that the argument be struck. The objection was
sustained, but the trial court denied the motion to strike. McNatt contends the failure to
strike the argument was error, requiring reversal of the judgment. To prevail, McNatt
must establish both that misconduct occurred and that the refusal to strike the argument
caused him prejudice requiring a reversal of the verdict. (People v. Gionis (1995) 9
Cal.4th 1196, 1215, 1218-1219.) McNatt cannot meet either requirement.

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While there was no evidence that witnesses might disappear or forget details of the
events involved, the issue of malingering clearly was brought up during Kremsdolf’s
testimony. Kremsdolf admitted that a possible motivation for malingering was to put off
the prospect of a jury trial on the charges. It is not beyond common experience to
conclude that a delay in the trial court may cause problems in either locating witnesses or
in their ability to remember the incident. The argument could be considered a fair
comment on the evidence.
Moreover, the portion of the argument to which McNatt objected is not an
example of using deceptive or reprehensible methods of persuasion. (People v. Gionis,
supra, 9 Cal.4th at pp. 1218-1219.) The issue of malingering, and McNatt’s motivation
to malinger, clearly was an issue for the jury because of Kremsdolf’s testimony.
Finally, even if we assume the prosecutor committed misconduct, this comment by
the prosecutor on a valid basis for attacking McNatt’s evidence did not cause McNatt any
prejudice. (People v. Gionis, supra, 9 Cal.4th at p. 1215.) As stated above, the
prosecutor was justified in arguing the jury should reject Kremsdolf’s opinion because
McNatt was malingering. The reference to possible consequences of a delay could not
have caused sufficient prejudice to influence the verdict.
II. The Trial
McNatt argues the trial court made two errors requiring reversal of the judgment,
both related to the use of propensity evidence. First, he asserts the propensity evidence
should not have been admitted. Second, he contends the use of CALJIC No. 2.50.01 et
seq. violated his right to due process. He claims his argument is different from that
considered by the Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007.
A. Introduction of propensity evidence
In addition to the testimony of the substantive offense, the People also received
permission from the trial court to introduce testimony about two prior acts committed by
McNatt pursuant to Evidence Code section 1108.

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Joseph M. spent the summer with his cousin when he was 16 years old,
approximately 14 years before the trial. Joseph obtained a summer job working for
McNatt in his lawn care business. After his first day of work, McNatt bought some beer
and drove to a secluded area. The two smoked marijuana and drank the beer. McNatt
produced a pornographic magazine and began massaging his groin area while leaving his
hand outside of his clothes. After a few minutes of this, Joseph became uncomfortable
and exited the vehicle to urinate. When Joseph returned, he asked McNatt to drive him
home, which McNatt did without protest.
F.A. met McNatt through his friend, Allen, when he was 13 years old. When F.A.
was 14, McNatt took F.A. and Allen to a movie. Allen was 16 at the time. McNatt then
took the boys out to dinner and then to a motel. McNatt provided the alcohol the three
drank that night. F.A. eventually got sick from the alcohol and lost consciousness.
When he woke up his pants were around his ankles and McNatt was sodomizing him.
F.A. again lost consciousness. When he next awoke he saw McNatt sodomizing Allen.
After falling asleep again, F.A. woke up to find McNatt orally copulating him while
Allen orally copulated McNatt. The events eventually were reported to the police.
McNatt argues the trial court should have excluded the testimony of both Joseph
and F.A. because admission of the propensity evidence violated his constitutional right to
due process and equal protection of the law, and because the probative value of the
evidence was substantially outweighed by its prejudicial effect. (Evid. Code, § 352.)
As McNatt recognizes, Evidence Code section 1108 has been found to comply
with a defendant’s constitutional right to due process and equal protection. (People v.
Falsetta (1999) 21 Cal.4th 903, 907; People v. Fitch (1997) 55 Cal.App.4th 172, 184-
185.) The issue is well settled, and McNatt does not present any compelling or different
argument that would justify departure from precedent. Therefore, we reject his
constitutional challenges to Evidence Code section 1108.

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McNatt focuses his argument on application of Evidence Code section 1108 to the
facts of his case. Evidence Code section 1108, subdivision (a) permits the prosecution to
introduce evidence that a defendant committed sexual offenses in the past if he is charged
with a sexual offense in the instant matter (propensity evidence). This case is a perfect
example of the reason the Legislature determined such evidence should be admitted.
Since Mark and McNatt were the only witnesses to the charged crimes, without
propensity evidence the jury must decide the matter based on its impression of Mark’s
credibility. The introduction of propensity evidence permits the jury to infer that because
McNatt committed such crimes in the past, he may have committed this crime. In
essence, the propensity evidence enhanced Mark’s credibility.
The use of propensity evidence is limited, however. Evidence Code section 1108,
subdivision (a) specifically prohibits introduction of propensity evidence if Evidence
Code section 352 requires exclusion. Evidence Code section 352 provides a trial court
with discretion to exclude evidence if it determines the probative value of the proffered
evidence is substantially outweighed by the probability that admission of the evidence
will (1) necessitate undue consumption of time, or (2) create substantial danger of
causing the defendant undue prejudice, or (3) create substantial danger of confusing the
issues, or (4) create substantial danger of misleading the jury.
McNatt argues the propensity evidence should have been excluded pursuant to
Evidence Code section 352 because the probative value of the evidence was substantially
outweighed by its prejudicial effect. We review the trial court’s ruling for an abuse of
discretion. (People v. Avila (2006) 38 Cal.4th 491, 578.)
McNatt relies primarily on two cases to support his argument. People v.
Smallwood (1986) 42 Cal.3d 415, overruled on other grounds in People v. Bean (1988)
46 Cal.3d 919, 939, footnote 8, set forth the controlling law for admission of other crimes
evidence pursuant to Evidence Code section 1101, subdivision (b). The Supreme Court
stated, in essence, that admission of such evidence was disfavored because of the

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potential that a defendant would be convicted because he was a bad person and not based
on evidence that he committed the crime for which he was on trial. (Smallwood, at
pp. 428-429.)
Smallwood does not assist McNatt because the Legislature has determined that
propensity evidence should be admitted when a defendant is accused of a sex offense. As
explained above, the courts have concluded that this determination does not violate a
defendant’s constitutional rights. In reaching this conclusion, the courts considered the
potential for prejudice that concerned the Smallwood court. While the concerns in
Smallwood remain valid, they are but one factor that the trial court must consider when
conducting its analysis pursuant to Evidence Code section 352.
The second case on which McNatt relies is People v. Harris (1998) 60
Cal.App.4th 727. Harris, a mental health nurse, was convicted of several sex offenses as
a result of allegations that he took advantage of two women who were patients at the
institution where he worked. One victim had a long history of mental health problems,
including hallucinations. She testified that while she was in the hospital, Harris lifted her
gown, kissed her breasts, rubbed her vagina, and put her hand on his penis, which was
not exposed. The second victim admitted she engaged in consensual sex with Harris, but
alleged that on another occasion Harris forcibly took off her clothes and kissed her
breasts and vagina. Harris stopped when she became hysterical. After she calmed down,
she allowed Harris to rub lotion on her body while she was covered with only a towel. A
few days later she had lunch with Harris. (Harris, at pp. 731-733.)
The prosecution introduced evidence of another attack committed by Harris 22
years earlier. The investigating officers discovered the victim in her apartment beaten
unconscious. She was bleeding from her mouth and vaginal area. Harris had stabbed her
with an ice pick several times. He was discovered a short distance away covered with
blood, including his underwear and penis. (People v. Harris, supra, 60 Cal.App.4th at
pp. 733-734.)

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The appellate court began its analysis by recognizing the trial court’s discretion to
exclude evidence pursuant to Evidence Code section 352. (People v. Harris, supra, 60
Cal.App.4th at p. 736.) When exercising its discretion, however, the trial court is
required to act consistently with the spirit of the law and “‘in a manner to subserve and
not to impede or defeat the ends of substantial justice.’ [Citation.]” (Id. at p. 737.)
The appellate court then identified five factors it would consider when evaluating
the admission of the prior crimes evidence: (1) the inflammatory nature of the evidence;
(2) the probability of confusing the jury; (3) the remoteness of the prior crime; (4) the
amount of time that would be consumed in presenting the prior crimes evidence; and (5)
the probative value of the prior crimes evidence. (People v. Harris, supra, 60
Cal.App.4th at pp. 737-741.)
The appellate court found the prior crimes evidence was extremely inflammatory
because of the brutality of the prior crime. The court also thought the jury was likely to
be confused because it was informed Harris had been convicted of burglary with great
bodily injury, creating the possibility the jury would believe Harris had escaped
punishment for rape. The remoteness of the prior crime also weighed heavily in favor of
exclusion because Harris had led a crime-free life in the 22 years since the prior crime.
Although the amount of time consumed in presenting the evidence was not significant,
the appellate court found the evidence lacked probative value because it was so dissimilar
to the current charges.
The appellate court observed, “‘The court should not permit the admission of other
crimes until it has ascertained that the evidence tends logically and by reasonable
inference to prove the issue upon which it is offered, that it is offered on an issue material
to the prosecution’s case, and is not merely cumulative.’ [Citation.]” (People v. Harris,
supra, 60 Cal.App.4th at pp. 739-740.) The appellate court concluded, “The evidence
did little more than show defendant was a violent sex offender. The evidence that
defendant committed a violent rape of a stranger, as the jury was led to believe, did not

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bolster [the victims’] credibility nor detract from the evidence impeaching their stories.”
(Id. at p. 740.) Based on its analysis of the above factors, the appellate court reversed the
judgment and held the trial court abused its discretion in admitting the evidence. “The
only factor favoring admitting this evidence is that it did not consume much time.
Everything else militates against admission: The evidence was remote, inflammatory and
nearly irrelevant and likely to confuse the jury and distract it from the consideration of
the charged offenses.” (Id. at p. 741.)
McNatt does not analyze the five factors identified in Harris, probably because
each factor favors admission of the propensity evidence. Here, the propensity evidence
was strikingly similar to the current offense. Each involved teenage boys who were
befriended by McNatt. He plied each with drugs and/or alcohol and, when their
resistance was compromised by intoxication, initiated some type of sexual activity.
Pornography was often a theme used by McNatt to initiate the sexual activity. While
there are some dissimilarities between the offenses (groping himself on one occasion,
engaging in sodomy and mutual oral copulation on another, and orally copulating the
victim while he masturbated in the current offense), the similarities are so striking as to
render the differences insignificant. The similarities between the incidents in this case,
however, establish the evidence was highly probative.
The remaining Harris factors also favored admission. The time consumed in
presenting the evidence was minimal. The crimes were not particularly remote,
especially when the trial court took into consideration the time McNatt spent in prison in
the intervening years. Nor did McNatt live a crime-free life in the years between the
prior acts and the current offense. The propensity evidence was not particularly
inflammatory since it was very similar to the charged crimes. It would be irresponsible to
suggest this factor resembled the inflammatory conduct in Harris in any way. Finally,
we see little likelihood the jury would have been confused by the proffered evidence.

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The trial court considered the arguments presented by McNatt and the applicable
factors. We conclude there was no abuse of discretion.
B. The jury instructions
McNatt next argues that his right to due process was violated because CALJIC
Nos. 2.50.01, 2.50.1, and 2.50.2 permitted the jury to convict defendant using a lower
standard than beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.)
McNatt recognizes that People v. Reliford, supra, 29 Cal.4th 1007 “may be considered
binding on this court.” This is a misstatement because, if the issue is the same, Reliford
is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
Reliford rejected two challenges to the 1999 revision to CALJIC No. 2.50.01.2
First, the defendant contended the instruction did not clearly inform the jury of the
2 The 1999 revision to CALJIC No. 2.50.01 read: “Evidence has been introduced
for the purpose of showing that the defendant engaged in a sexual offense [on one or
more occasions] other than that charged in the case. [¶] [‘Sexual offense’ means a crime
under the laws of a state or of the United States that involves any of the following:
[¶] [A.] [Any conduct made criminal by Penal Code section ____. The elements of [this
crime is] [these crimes are] set forth elsewhere in these instructions.] [¶] [B.] [Contact,
without consent, between any part of the defendant’s body or an object and the genitals
or anus of another person.] [C.] [Contact, without consent, between the genitals or anus
of the defendant and any part of another’s person’s body.] [D.] [Deriving sexual pleasure
or gratification from the infliction of death, bodily injury, or physical pain on another
person.] [E.] [An attempt or conspiracy to engage in specific sexual conduct identified
[in subparagraph ___] [herein].]] [If you find that the defendant committed a prior sexual
offense, you may, but are not required to, infer that the defendant had a disposition to
commit [the same or similar type] sexual offenses. If you find that the defendant had this
disposition, you may, but are not required to, infer that [he] [she] was likely to commit
and did commit the crime [or crimes] of which [he] [she] is accused. [¶] However, if you
find [by a preponderance of the evidence] that the defendant committed [a] prior sexual
offense[s], that is not sufficient by itself to prove [beyond a reasonable doubt] that [he]
[she] committed the charged crime[s]. The weight and significance of the evidence, if
any, are for you to decide. [¶] [[Unless you are otherwise instructed, y][Y]ou must not

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limited purpose for which propensity evidence could be used. Second, the defendant
argued the instruction would mislead the jury on the prosecution’s burden of proof.
(People v. Reliford, supra, 29 Cal.4th at pp. 1012-1014.)
The jury was instructed in this case as follows:
“Evidence has been introduced for the purpose of showing that the
defendant engaged in a sexual offense on one or more occasions other than
that charged in this case.
“‘Sexual offense’ means a crime under the laws of a state or of the United
States that involves any of the following:
“A. Any conduct made criminal by Penal Code § 647.6(c)(2) and/or
288a(b)(1). The elements of these crimes are set forth elsewhere in these
instructions.
“If you find that the defendant committed a prior sexual offense, you may,
but are not required to, infer that the defendant had a disposition to commit
sexual offenses. If you find that the defendant had this disposition, you
may, but are not required to, infer that he was likely to commit and did
commit the crime or crimes of which he is accused.
“However, if you find by a preponderance of the evidence that the
defendant committed a prior sexual offenses [sic] or offenses, that is not
sufficient by itself to prove beyond a reasonable doubt that he committed
the charged crimes. If you determine an inference properly can be drawn
from this evidence, this inference is simply one item for you to consider,
along with all other evidence, in determining whether the defendant has
been proved guilty beyond a reasonable doubt of the charged crime.”
This instruction was immediately followed by CALJIC No. 2.50.1, which read:
“Within the meaning of the preceding instruction, the prosecution has the
burden of proving by a preponderance of the evidence that the defendant
committed a sexual offense or offenses other than those for which he is on
trial.
consider this evidence for any other purpose.]” (CALJIC No. 2.50.01 (1999 rev.) (6th ed.
1996).)

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“You must not consider this evidence for any purpose unless you find by a
preponderance of the evidence that the defendant committed the other
sexual offense or sexual offenses.”
McNatt’s argument is difficult to follow. It appears to us that McNatt is arguing
that propensity evidence is a form of circumstantial evidence. CALJIC No. 2.01, with
which the jury also was instructed, informs the jury that “each fact which is essential to
complete a set of circumstances necessary to establish the defendant’s guilt must be
proved beyond a reasonable doubt.” CALJIC Nos. 2.50.01 and 2.50.1, on the other hand,
permit the facts underlying propensity evidence to be proven using the preponderance of
the evidence standard, thus creating a special class of circumstantial evidence.
As we read McNatt’s argument, the tension created by using the beyond a
reasonable doubt standard for most circumstantial evidence, and the preponderance of the
evidence standard for propensity evidence, results in various problems. The solution,
according to McNatt, is to require propensity evidence be proven using the beyond a
reasonable doubt standard.
Part of the difficulty in understanding McNatt’s argument is that he uses
interchangeably the terms “facts” and “evidence.” Winship requires that each element of
a crime be proven beyond a reasonable doubt before a conviction may result. Some cases
refer to the elements of the crime as the ultimate facts in the case. (See, e.g., People v.
Medina (1995) 11 Cal.4th 694, 763.) In the context of circumstantial evidence, CALJIC
No. 2.01 is analogous in that it requires the ultimate facts supporting the inference that
the defendant is guilty be proven beyond a reasonable doubt. We note that one case has
described the origins of this requirement as “murky” (People v. James (2000) 81
Cal.App.4th 1343, 1358-1359, fn. 9).
On the other hand, direct evidence of defendant’s guilt, such as eyewitness
testimony, need not be proven true beyond a reasonable doubt. CALJIC No. 2.00, which
defines direct evidence, does not place any restriction on the use of direct evidence. It is
left to the jury to determine the value to be placed on direct evidence in determining the

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17.
defendant’s guilt, e.g., the believability of the witness and the quality of his or her
observations.
The Supreme Court, however, has resolved these distinctions for the ultimate facts
used to establish propensity evidence, and other classes of prior acts evidence, by holding
that they need to be proved by a preponderance of the evidence. (People v. Carpenter
(1997) 15 Cal.4th 312, 380-383; People v. Medina, supra, 11 Cal.4th at pp. 763, 764.)
The Supreme Court also has held that CALJIC Nos. 2.50.01 and 2.50.1 are appropriate
instructions to guide the jury in the use of propensity evidence pursuant to Evidence
Code section 1108. (People v. Reliford, supra, 29 Cal.4th at p. 1016; People v. Falsetta,
supra, 21 Cal.4th at pp. 923-924.)
While McNatt spends considerable effort contending his argument is different
from those made in the preceding cases, we disagree. The essence of his argument is that
by allowing a jury to use propensity evidence that has been proven using the
preponderance of the evidence standard, his right to due process is violated. The above
cases have held that it does not, and we are bound by these holdings. (Auto Equity Sales,
Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
III. The Sentence
McNatt argues that the imposition of an aggravated sentence violates his Sixth
Amendment right to a jury trial as established in Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), United States v.
Booker (2005) 543 U.S. 220 (Booker) and, most recently, Cunningham v. California
(2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).3
3 McNatt asked to submit additional briefing because Cunningham was decided
after his briefs were filed. We denied the request. McNatt asked again to file a
supplemental brief on this issue. We have reviewed his brief and again deny his request
pursuant to this court’s standing order dated February 16, 2007.

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18.
Apprendi held that a defendant’s Sixth Amendment right to a jury trial required
any fact that increases the prescribed statutory maximum penalty for a crime be charged
in the indictment and submitted to a jury utilizing the beyond a reasonable doubt
standard. (Apprendi, supra, 530 U.S. at p. 490.) The only fact not subject to these
requirements is a prior conviction. (Ibid.)
In Blakely the Supreme Court, citing Apprendi, invalidated Washington’s
sentencing law finding that it violated the Sixth Amendment. “Whether the judge’s
authority to impose an enhanced sentence depends on finding a specified fact (as in
Apprendi), one of several specified facts (as in Ring [v. Arizona (2002) 536 U.S. 584], or
any aggravating fact (as here), it remains the case that the jury’s verdict alone does not
authorize the sentence. The judge acquires that authority only upon finding some
additional fact.” (Blakely, supra, 542 U.S. at p. 305.) The Supreme Court again
recognized, however, that a prior conviction is not subject to this requirement. (Id. at p.
301.)
Booker invalidated the federal sentencing scheme on Sixth Amendment grounds
and, instead, implemented a system that gave trial judges vast discretion in sentencing.
(Booker, supra, 543 U.S. at pp. 243-244 (opn. of Stevens, J.; id., at pp. 244-246 (opn. of
Breyer, J.).) Booker continued to recognize that the fact of a prior conviction need not be
pled or proven to the jury. (Id. at p. 231 (opn. of Stevens, J.).)
Cunningham held that California’s Determinate Sentencing Law (§ 1170 et seq.)
violated a defendant’s Sixth Amendment right to a jury trial when an aggravated sentence
was imposed. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The
Supreme Court, however, specifically recognized the validity of imposing aggravated
terms based on prior convictions. “Because circumstances in aggravation are found by
the judge, not the jury, and need only be established by a preponderance of the evidence,
not beyond a reasonable doubt, [citation,] the [Determinate Sentencing Law] violates
Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the

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19.
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.’ [Citation.]” (Ibid., italics added.)
This precedent convinces us that in California, under prior law,4 an aggravated
sentence can be imposed if the facts on which the aggravated sentence are based (1) are
pled in the information and found true beyond a reasonable doubt by the jury or (2) are
limited to prior convictions.
The probation report indicates that between 1977 and 1989 McNatt suffered three
convictions (§ 12020, subd. (a)(17) (possession of an illegal firearm); § 647, subd. (a)
(disorderly conduct); and Health & Saf. Code, § 11357, subd. (c) (possession of
marijuana)). McNatt received misdemeanor probation for each offense, and apparently
performed satisfactorily. In 1993 McNatt was sentenced to eight years in the California
Department of Corrections as a result of his conviction of eight counts of violating
section 288a (oral copulation) and three counts of violating section 286 (sodomy),
apparently as a result of the incident to which F.A. testified. He was paroled in 1998 and
violated his parole in 2001. The parole violation apparently occurred when he was
convicted in 2001 of violating section 288, subdivision (c)(1) (lewd and lascivious acts
with a child), for which he received a one-year sentence in the California Department of
Corrections. McNatt was discharged from parole one month before the present offense
occurred.
In sentencing McNatt, the trial court found McNatt’s satisfactory performance on
misdemeanor probation and felony parole in the past as the only factor in mitigation.
(Cal. Rules of Court, rule 4.423(b)(6).) As circumstances in aggravation, the trial court
found (1) McNatt’s prior convictions were numerous (id., rule 4.421 (b)(2)); (2)
4 Section 1170 was amended effective March 30, 2007, to address the issues raised
by Cunningham. (Stats. 2007, ch. 3, § 2.) The trial court is now granted discretion to
determine which term to impose without any presumption that the middle term is the
appropriate term. (§ 1170, subd. (b).)

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20.
McNatt’s prior convictions were significant because they involved charges similar to the
instant offense (id., rule 4.421(c)); and (3) McNatt’s performance on felony parole was
unsatisfactory after the 1993 conviction (id., rule 4.421(b)(5)). Based on these facts, the
trial court imposed the aggravated term of six years.
McNatt contends his sentence violates Cunningham. We disagree. The first two
factors relate to his prior convictions, the one aggravating factor left to the discretion of
the trial court by the Supreme Court in each of the above cited cases. The trial court was
not, therefore, obligated to submit the issue to the jury for its determination.
We cannot agree with the proposition that, even if a defendant has prior
convictions, a jury must determine whether they are numerous, similar to the present
charges, or significant for some other reason. McNatt attempts to extend the above cases
beyond any rational boundary. Trial courts retain discretion, as was established in
Booker, where federal trial courts now have virtually unlimited discretion. Once a prior
conviction is found true, how it is used or interpreted is left to the sound discretion of the
trial court.
The only factor that arguably may be unrelated to a prior conviction is that McNatt
performed poorly on parole in the past. McNatt suggests that performance on parole does
not fall within the Cunningham exception because it merely reflects his status after a
conviction. There is no need to resolve this dispute because the factors relating to
McNatt’s prior convictions support imposition of the aggravated term. Any error,
therefore, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.)
McNatt has framed his argument as ineffective assistance of counsel because this
issue was not raised in the trial court. He received ineffective assistance only if he can
establish that had trial counsel objected, he would have received a more favorable result.
(People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Since we have concluded that any
objection would have been futile, McNatt’s counsel was not ineffective.

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21.
DISPOSITION
The judgment is affirmed.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
DAWSON, J.
_____________________
HILL, J.

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