People v. Neeley CA4/1

Opinion

Filed 9/11/26 P. v. Neeley CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D087607

Plaintiff and Respondent, v. (Super. Ct. No. SWF1907329) MARK RICHARD NEELEY II, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Francisco Navarro, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Steve Oetting and Joshua Trinh, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Mark Richard Neeley II on 16 counts relating to various sexual offenses committed against numerous victims. Neeley appeals and asserts that one of the convictions for false imprisonment is not supported by sufficient evidence; that the trial court abused its discretion when it admitted evidence related to uncharged acts against additional victims under Evidence Code sections 1108 and 352; and that the trial court erred by refusing to instruct the jury with a pinpoint instruction explaining that Neeley was not guilty on counts 7 through 16 if he actually and reasonably believed the victim in each was over the age of 18. We reject these assertions and affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND The People charged Neeley with rape (counts 1 and 4; Pen. Code § 261, subd. (a)(2));1 sodomy (count 2; § 286, subd. (c)(2)(A)); false imprisonment (counts 3 and 5; § 236); assault with intent to commit rape (count 6; § 220, subd. (a)(1)); contacting a minor with intent to commit sex offense (counts 7, 9, 11, 13, 14 and 16; § 288.3, subd. (a)); distributing harmful material to a minor (counts 8, 10 and 15; § 288.2, subd. (a)(2)); and arranging a meeting with a minor motivated by an abnormal sexual interest (count 12; § 288.4, subd. (b)). As discussed in more detail post, the various alleged counts related to seven separate victims. The People alleged further that Neeley committed sex offenses against more than one victim (§ 667.61, subd. (e)(4)) and that he engaged in the tying and binding of a person (§ 667.61, subd. (e)(5)). A. Prosecution’s Evidence 1. LS – Count 1 (rape), Count 2 (sodomy), and Count 3 (false imprisonment) LS met Neeley in April 2019. She was 21 years old at the time. Neeley gave LS a ride as an Uber driver and then contacted her afterwards by falsely saying that she left something in his vehicle. LS said that Neeley told her that “he just didn’t want to let me go or stop talking to me.” They continued to talk over social media. Around the same time, LS also started receiving 1 Further unspecified statutory references are to the Penal Code.

2 messages from an anonymous account. The anonymous user sent a picture of a rope. LS later learned that the anonymous user was also Neeley. Neeley told LS, “let me spoil you” and offered her “1,000 [dollars] for some time in ropes” and 100 dollars to video chat. On May 17, 2019, LS got into a fight with her boyfriend and asked Neeley for a ride. LS was very drunk. Neeley picked LS up in his Jeep and she asked him to take her home. She was sobbing and blacked out for the entire car ride. The next thing she recalled was being in front of a gate and not knowing where she was. She learned that she was at Neeley’s residence. LS continued to black out for periods of time, and her memory was blurry as a result. She recalled being tied up on Neeley’s couch, with her hands behind her back. Neeley raped her, stopped, and then forcibly sodomized her. LS tried to fight back but was not successful. She told Neeley to stop numerous times, but he did not acknowledge her. LS was terrified of saying the wrong thing, as she knew that Neeley had guns upstairs, but she was eventually able to convince him to untie her and give her a ride. She asked him to drop her off at a gas station and, once he left, she immediately called 911. An officer arrived and LS was transported to the hospital via ambulance. A nurse performed an examination with a rape kit and took pictures of LS’s injuries. LS messaged Neeley on Snapchat with an officer in the room. She asked, “Why did you rape me when I told you no?” Neeley responded by saying that LS had initiated the sexual contact. LS replied, “That is not what happened, and you know that.” The nurse who performed the rape kit examination on LS testified that LS had a couple of bruised areas on the right side of her neck, and an abrasion on her vagina that was consistent with sexual assault. The nurse 3 took and labeled several swabs of various areas on LS’s body. A criminologist identified foreign DNA on the perianal swab, the vaginal swab, the external genital swab, and the swabs from both breasts. For the sperm fraction on the vaginal swab, Neeley was identified as a possible contributor, and “the chances of finding another person who would also be included as a contributor to that sample are one in 2.7 [nonillion], that’s one . . . with 30 zeros behind it.” He obtained similar results for the remaining swabs. 2. RH – Count 4 (rape) and Count 5 (false imprisonment) RH began communicating with Neeley through social media in September 2017. Her husband had passed away a few months earlier, and she had two young children. On or around September 9, 2017, RH took her children to Neeley’s house to have dinner and hang out. After dinner, the children fell asleep and Neeley and RH went upstairs. While in Neeley’s bedroom, they started kissing. Neeley attempted “some type of sexual interaction” but RH pushed him away. RH said no at least once and continued to push Neeley’s hips, trying to hold him up, but she could not. RH was 4 feet 10 inches tall and weighed approximately 90 pounds at the time. Neeley was stronger than she was. Neeley proceeded to have sexual intercourse with RH. Immediately after, RH got dressed, gathered her children, and left. She went to the pharmacy and purchased medication to avoid pregnancy. RH sent a text message to a friend stating that Neeley had raped her. RH said, “He’s a marine. So I don’t want to report it because that would be more drama than it’s worth. I’d rather just try to forget about it than make more shit for myself to deal with. But I’m really mad because I kept saying no, and he just climbed on top of me like he owned the place, even when I kept saying no. He didn’t listen.” She never spoke to Neeley again.

4 RH did not report the rape immediately, for the reasons she had explained to her friend. RH reported the incident in May 2019, when she saw a news article indicating that Neeley had been accused of rape. She told a police investigator that she said no numerous times, but Neeley would not stop. 3. JB – Count 6 (assault with intent to commit rape) JB met Neeley at her sister’s house in the summer of 2017. She was 18 years old. JB had been doing some modeling and Neeley asked her if she would do a photo shoot with him. JB and Neeley met at a Panera restaurant and he showed her examples of pictures he would like to take of her in a bikini by a pool. He agreed to pay a certain amount for the photos and then purchased a ticket to a music festival for JB. Later that same day, JB messaged Neeley and said that she had left her wallet in his car. Neeley gave JB the address to his apartment and she drove there to get her wallet. When she got to the apartment, she asked to use Neeley’s bathroom. He pointed upstairs but when JB got to the top of the stairs, she realized there was no bathroom, it was just a bedroom. Neeley followed her into the bedroom and opened a nightstand drawer. There was rope and tape inside and he told her about some sexual photo shoots that he had done. JB was uncomfortable. Neeley got close to JB; he started touching her shoulder and tried to kiss her. JB said that she was uncomfortable and asked him to stop. She said that she wanted to leave and that her mom was waiting for her to get home. JB was wearing a dress and Neeley tried to touch her under her dress. She tried to hold his arm back and told him not to do that. Neeley did not respond, he just stared at JB with a blank expression. Neeley pushed JB onto the bed. He unzipped his pants and tried to pull JB’s underwear to the 5 side. JB said that “she was begging him, I told him if he did this, I was going to kill myself.” Neeley let JB stand up and she sprinted down the stairs and out the door to her car. Neeley yelled, “I wasn’t going to fucking rape you,” as JB left. JB went to a friend’s house and then went to the police station to make a report. Shortly after the incident, JB and Neeley exchanged the following text messages: JB: “You just tried to rape me.” Neeley: “Simply having fun.” JB: “Okay. I’m just letting you know I’m reporting you.” Neeley: “For what? You came over and threw yourself at me. Now you’re saying I tried to rape you. What you’re trying to get more money for the photo shoot. You already ripped me off. This bullshit won’t work.” JB: “How the fuck did I throw myself at you? I literally did not touch you at all. You pushed me down in your bed, the whole time I was yelling stop. And you wouldn’t. If I didn’t hold your arms from touching me, you would have raped me. You were unbuckling your pants and holding me down.” JB was 5 feet, 5 inches tall and weighed about 125 pounds. JB estimated that Neeley was approximately 5 feet, 10 inches tall and weighed 210 to 220 pounds. 4. LG – Count 7 (contacting a minor with intent to commit sex offense) and Count 8 (distributing harmful material to a minor) LG was 16 years old when she had contact with Neeley and did not testify. The parties stipulated: “The People attempted to subpoena Jane 6 Doe, initials LG; however, we are unable to locate her for service. She is aware of the ongoing court proceedings.” On May 17, 2019, the police executed a search warrant at Neeley’s residence. They obtained three cellular phones, a laptop computer, and a computer tower. There were messages between Neeley and several of the victims on the phone, including JB and LG. On April 27, 2019, LG and Neeley exchanged the following messages: Neeley: “Interest in being spoiled?” [Venmo information exchanged] Neeley: “If you are down to meet, this can be arranged.” LG: “No. WTF. How old are you?” Neeley: “Exactly old enough to spoil and have women love it.” LG: “But how old?” Neeley: “It doesn’t matter unless you are coming over to ride my cock.” LG: “I’m 16, so no again.” Neeley: “You’re a virgin? Do you still want to be spoiled?” LG: “For doing nothing, yes. Like if you just want to give me money, go ahead, but I’m not doing anything.” Neeley: “What about for video chatting and watching me cum?” LG: “Nope.” Neeley: “100 bucks? You don’t have to do anything.” LG: “Nope.” Neeley: “Okay, I tried. Can I send you a video of it?” LG: “For money?”

7 Neeley: “I send money if you video chat and watch.” LG: “No.” Neeley: “100 just to watch?” LG: “A video?” Neeley: “No, I want to see your face when I cum. It will be fast. I’m about to cum now.” LG: “Nope. You are disgusting.” Neeley: “Watch now?” LG: “No.” Another exchange of messages occurred on April 30, 2019 and May 1, 2019: Neeley: “Is that you in the black shorts?” LG: “Ya.” Neeley: “Very gorgeous.” LG: “Thanks.” Neeley: “Still no wanting to be spoiled?” LG: “Nope.” Neeley: “No worries. Just wanted to ask.” 5. TL – Count 9 (contacting a minor with intent to commit sex offense) and Count 10 (distributing harmful material to a minor) TL received an Instagram message from Neeley in April 2019, around the time of her 16th birthday. Neeley asked if she wanted to be spoiled and TL said no. Neeley continued to message TL. He asked her if she would watch him ejaculate for money. TL told Neeley she thought he was fake, so he sent her $50 on Venmo to prove that he was real. TL wanted to see how much money she could get from him so she said she would watch him if he sent $100 more. Neeley said that he wanted to see TL topless and that he would give her $150. TL told Neeley that she was 16. Neeley sent TL a 8 photo of his erect penis. TL ended up blocking Neeley’s account because “it was becoming too much.” 6. KH – Count 11 (contacting a minor with intent to commit sex offense) KH met Neeley over social media in April 2019, when she was 15 years old. Her Instagram profile indicated that she was a student at a local high school. Neeley messaged KH and offered to “spoil” her in return for sexual acts or videos. Neeley asked KH to send him pictures in her underwear, and videos of herself doing explicit things. He was very detailed in his requests. KH told Neeley that she was only 16 years old. The People introduced images of KH and Neeley’s messages on Snapchat. Neeley sent KH $50 on Venmo for a video that he requested, but KH never sent him the video. 7. TB – Count 12 (arranging a meeting with a minor motivated by an abnormal sexual interest) and Count 13 (contacting a minor with intent to commit sex offense) TB began messaging with Neeley on Snapchat in April 2019, when she was 14 years old. Neeley had already been messaging with TB’s friend, Ashley. Ashley said that Neeley was paying her money to send photos of herself. TB believed that Ashley was 15 years old at the time. Neeley offered TB money to send pictures of her body and videos of her and Ashley “doing sexual things together.” Neeley sent TB money on Venmo. TB sent Neeley one image of her buttocks. She also took videos of other videos from the internet in which other girls were engaging in sexual activity and sent those to Neeley. Neeley offered TB $1000 to meet him in person to have sex. TB gave Neeley a fake address about two hours away from her actual home. He messaged her when he got to that address. He told her to come outside, or he 9 would find her real address and mail everything they had exchanged to that address. TB blocked Neeley on Snapchat after that incident. He found her on Instagram and started messaging her there. Neeley was messaging TB’s friends and she told him to stop. He asked if she was jealous that they were receiving things that she was not. 8. MG – Count 14 (contacting a minor with intent to commit sex offense), Count 15 (distributing harmful material to a minor) and Count 16 (contacting a minor with intent to commit sex offense) MG met Neeley through Tinder, a social media dating app, when she was 17 years old. Neeley saw MG’s profile on Tinder but they started talking on Snapchat. Neeley knew that MG was 17 but he wanted to meet in person and kept asking her to sneak out. He also told MG that it would be best for them both if she would delete any messages where she mentioned her age. MG avoided meeting Neeley in person and he became more insistent, constantly texting and getting upset that she would not meet him. Neeley asked MG to send nude photographs and videos of sexual acts. Neeley sent her photos of his erect penis, of other women “in compromising positions,” and of ropes and toys that he said he wanted to use on her. MG blocked Neeley after a few weeks because he started threatening to deliver photos that MG had sent him to MG’s father. He then contacted her on a different account and again threatened to give the photos to her father if she did not meet with him. MG told Neeley to leave her alone and she did not have any communication with him after that. The People presented screenshots of some of the messages between Neeley and MG, which MG authenticated. She had deleted the messages about her age but there were messages about her not being able to go out at 10 night because her father would not let her. There was also an image of Neeley’s erect penis. 9. Uncharged Acts The People also presented evidence of certain uncharged acts, over defense counsel’s objections. a. AL AL met Neeley in Virginia in 2017. AL was 19 years old. She was approximately 5 feet 2 inches tall and weighed “barely a hundred pounds. Neeley was 5 feet 7 or 8 inches and stronger than AL. AL and Neeley dated for less than a month and remained friends for some time after, in part because AL felt bad for breaking up with Neeley. One day, after they had broken up, AL went over to Neeley’s townhome to play video games. Neeley was grabbing at AL while she played a virtual reality game. She kept telling him to stop and she eventually decided to leave. When she got up to leave, Neeley grabbed her and put her over his shoulder. She asked him to put her down and said that she wanted to go but he carried her upstairs into his bedroom and forced her down on his bed. Neeley touched AL’s vagina and inserted his fingers. AL started screaming “No” and “Please stop,” hoping that a neighbor would hear. Eventually, Neeley let her go. AL left as fast as she could. AL never saw Neeley in person after that incident. He did continue to send her text messages. She said “you basically assaulted me. I mean, you did assault me. I don’t want anything to do with you,” but he continued to send her messages on various platforms, asking her to move out to California with him.

11 AL did not initially report the incident to the police. She was young and did not think the police would believe her over someone in the military. She came forward in 2019 when she saw reports of his arrest on social media. b. AA AA met Neeley on a dating app and they dated for a while in 2017. They broke up before Thanksgiving, but Neeley would continue to check in on AA about once a month. AA met up with Neeley for drinks on January 31, 2018. They went to a bar that was a block from where AA was living at the time, and her plan was to just walk home after. Towards the end of the evening, AA was hungry and wanted to go get food. Neeley drove. AA thought they were going to stop at a fast-food restaurant nearby, but Neeley kept going and they ended up at his apartment, about 20 minutes away. When they got there, they had another drink and maybe some food. Neeley said that he could not drive any more that night, because he was too drunk, and that AA could take his car to class in the morning. AA stayed at Neeley’s apartment and they slept in the same bed together but nothing physical happened that night. The next morning, shortly after AA woke up, Neeley started trying to initiate sex. AA told him “no” and “stop.” Neeley did not stop. He moved on top of AA. AA continued to try to keep distance between them and to tell Neeley to stop. Neeley kept pushing and tried to take his pants off. AA put herself into a ball because she knew she was not strong enough to get him off from her. Neeley eventually let AA go. AA was 5 foot 3 inches tall and weighed maybe 120 pounds at the time. After, Neely apologized and said he “didn’t mean for that to happen.” AA sent a text message to Neeley shortly after the incident. She stated, in 12 part, “Whatever the hell happened yesterday was not okay. If I say stop, you need to respond. You need to respect me and fucking stop.” AA dated Neeley again later that year. AA noticed that if he made an advance and she said she was not in the mood or not right now, that it seemed to excite Neeley. B. Defense Evidence Neeley testified in his own defense. He said that he began driving Uber while stationed as a Marine at Camp Pendleton in December 2018. He stated that he did not need extra income but that he was newly single, after being married for 11 years, and felt like driving for Uber was a good opportunity to meet new people. Neeley acknowledged that he met LS when he gave her an Uber ride, and that he pursued messaging with her after the ride. He said that LS called him on his personal phone on May 17 asking for a ride, that she did not appear to be intoxicated when he picked her up, and that she asked to go to his house. They did have intercourse twice, and Neeley also tied LS up with rope, but LS initiated and never indicated any opposition. When Neeley was driving LS home, she turned her phone back on and suddenly asked him, “Why didn’t you stop when I said no?” LS then asked to be dropped off immediately, and Neeley agreed to drop her at a gas station off the freeway. Neeley said that he met RH on a dating app and invited her and her children over to his house for dinner. He said that nothing physical happened that night but that RH and her kids came back a second time for popcorn and a movie. On the second night, he and RH had consensual sex. RH got upset because Neeley ejaculated without protection and she was not on birth control. She decided to leave at that time.

13 Neeley said that he met JB at her sister’s house, after meeting her sister on Tinder. Neeley began following JB on Snapchat and a few months later, she messaged him asking for a ride. The next time they met was at the Panera to talk about Neeley taking photos of JB with ropes. Neeley agreed to buy JB some concert tickets, and she agreed to allow him to take the photos. They went to Neeley’s house. JB then asked Neeley to buy two more of her friends tickets. He got upset and decided not to take the photos. Nothing sexual happened. Neeley testified that he believed that any of the girls that he sent Venmo payments to, including LG, TB and KH, were at least 18 years old because they had a Venmo account. When LG said she was 16, he “assumed, apparently incorrectly, that it was meant to be, like, a titillating-type comment.” He thought MG was 18 because she was on Tinder. With respect to the uncharged offenses, Neeley said that he and AA cuddled but that nothing sexual happened on that particular morning, and that AL consented to the contact that did occur. C. Verdict and Sentencing The jury found Neeley guilty on all counts and found each allegation true. The trial court sentenced Neeley to an indeterminate term of 40 years to life followed by a determinate term of 11 years 4 months. II. DISCUSSION A. There Was Substantial Evidence to Support a Conviction for Count 5 – False Imprisonment of RH Neeley asserts that there was insufficient evidence to support the conviction in count 5, felony false imprisonment of RH. “ ‘In reviewing a challenge to the sufficiency of the evidence, . . . we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is 14 reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1215.) “ ‘We do not reweigh evidence or reevaluate a witness’s credibility.’ ” (Ibid.) “ ‘We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Ibid.) “ ‘ “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” ’ ” (Ibid.) The substantial evidence standard of review is a deferential standard. “ ‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.’ ” (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) An appellant challenging the sufficiency of the evidence under the foregoing standards “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Section 236 defines false imprisonment as “the unlawful violation of the personal liberty of another.” “In this context, ‘ “[p]ersonal liberty” ’ is violated when ‘the victim is “compelled to remain where [s]he does not wish to remain, or to go where [s]he does not wish to go.” ’ ” (People v. Reed (2000) 78 Cal.App.4th 274, 280 (Reed).) If the false imprisonment is “effected by violence, menace, fraud, or deceit,” it is punishable as a felony. (§ 237, subd. (a); accord People v. Whitmore (2022) 80 Cal.App.5th 116, 130 (Whitmore) [“false imprisonment is a felony if committed using either violence or menace”].) “In this context, 15 ‘violence’ means using physical force greater than the force reasonably necessary to restrain someone.” (Whitmore, at p. 130.) “ ‘The additional force required for felony false imprisonment, as opposed to misdemeanor false imprisonment, may come in the form . . . of simply pulling a victim toward a location when the victim’s liberty has already been violated.’ ” (Ibid.) “ ‘[S]uch additional and unnecessary force may also arise from sexual assaults suffered by the victim during the course of the defendant’s contact with the victim.’ ” (Ibid.) Here, there was substantial evidence that Neeley violated RH’s personal liberty when he pinned her to the bed and engaged in sexual intercourse despite her attempts to push him off. RH testified that she said no at least once and continued to push Neeley’s hips away from her, but that he overpowered her and proceeded to have sexual intercourse with her without her consent. She stated further that she was 4 feet 10 inches tall and weighed approximately 90 pounds at the time and that Neeley was stronger than she was. “ ‘The testimony of one witness, if believed, may be sufficient to prove any fact.’ ” (People v. Johnson (2019) 32 Cal.App.5th 26, 57.) If the jury credited RH’s testimony, as it was entitled to do, it was sufficient to establish that Neeley prevented her from moving freely (i.e., getting up off of the bed). (See Reed, supra, 78 Cal.App.4th at p. 280 [“It is the restraint of a person’s freedom of movement that is at the heart of the offense of false imprisonment embodied in section 237.”].) Moreover, RH’s testimony that Neeley proceeded to have sexual intercourse with her despite her objections is sufficient to establish that Neeley used physical force greater than the force reasonably necessary to restrain RH. (Whitmore, supra, 80 Cal.App.5th at p. 130; see also People v. Ghipriel (2016) 1 Cal.App.5th 828, 834 (Ghipriel) [“such 16 additional and unnecessary force may also arise from sexual assaults suffered by the victim during the course of the defendant’s contact with the victim]”.) Neeley contends that he “never indicated, physically, or verbally to RH that she was not free to leave,” and that she left after the assault. But in the portion of the transcript that Neeley cites, RH was asked by defense counsel, “Did he ever indicate to you physically or verbally in any way, shape or form that you were not free to leave?” and she responded, “Not except when I was pushing him and he wouldn’t get up.” From this response, it was reasonable for the jury to conclude that Neeley’s refusal to get off of RH when she was pushing him away was a physical indication that she was not free to leave. Neeley relies on People v. Matian (1995) 35 Cal.App.4th 480, but Matian is not instructive here and, in any event, other courts have since disagreed with it. (See, e.g., People v. Castro (2006) 138 Cal.App.4th 137, 143 [“we do not agree with the result in Matian, or with appellant’s argument that comparison with the facts in Matian requires reversal of his conviction for felony false imprisonment”].) In Matian, the defendant squeezed the victim’s breast “sufficiently hard to cause her pain, and possibly even bruising.” (Matian, at p. 485.) When she went to leave, he “grabbed her arm and yelled at her not to go.” (Ibid.) She “retreated to a chair and . . . [the defendant] glared at her and got up to approach her” each time she tried to stand up, causing her to be afraid and sit back down. (Ibid.) The court explained that the People asserted the evidence supported a finding of menace, and therefore “tacitly agree[d]” that the defendant grabbing the victim’s arm was not sufficient “violence” to support the conviction. (Ibid.) The court then explained that courts finding menace typically relied on either 17 the use of a deadly weapon or verbal threats, and that there was no evidence that Matian used either. (Id. at pp. 485–487.) Here, the People have not restricted themselves to menace and instead assert that the additional force supporting the felony conviction arises from the sexual assault. Notably, the trial court stayed the punishment for count 5 under section 654 because it was based on the same act as count 4, the rape of RH. In his reply brief, Neeley asserts that the restraint must be independent and not merely incidental to another offense, but he cites no authority to support that assertion. To the contrary, in Ghipriel, the court found evidence that the defendant pulled the victim into his office and then proceeded to sexually assault her supported a conviction for felony false imprisonment. (Ghipriel, supra, 1 Cal.App.5th at p. 831.) Here, Neeley held RH down on the bed under the weight of his own, much larger body, and then proceeded to rape her. We see no material distinction insofar as far as the elements of felony false imprisonment are concerned. In sum, we conclude that substantial evidence, including evidence related to the rape, supports the conviction in count 5 for felony false imprisonment. B. The Trial Court Did Not Err by Admitting Evidence of Uncharged Acts Neeley asserts the trial court erred by admitting evidence of uncharged acts related to AL and AA. Evidence Code section 1108, subdivision (a) provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”

18 “As the legislative history indicates, the Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes.” (People v. Falsetta (1999) 21 Cal.4th 903, 915.) At the same time, the admissibility is tempered by Evidence Code section 352 to protect against the risk that a jury will convict a defendant based solely on his or her disposition to commit sex offenses. (Falsetta, at p. 919.) Neeley does not dispute that the evidence falls under Evidence Code section 1108; he asserts only that it was inadmissible under Evidence Code section 352 because it had limited probative value and was necessarily prejudicial. “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its 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.” (Falsetta, supra, 21 Cal.4th at p. 917.) “We review a challenge to a trial 19 court’s choice to admit or exclude evidence under [Evidence Code] section 352 for abuse of discretion.” (People v. Branch (2001) 91 Cal.App.4th 274, 282.) Neeley’s primary assertion here is that the uncharged acts were not substantially probative because they were not similar to the charged acts. We disagree. As the trial court explained, the conduct involved in the incident with AL was “very similar to the conduct we have heard from [RH].” Neeley argues that AL only accused him of digital penetration while RH asserted vaginal rape. But Neeley offers no authority suggesting that the defendant must commit the exact same offenses against each victim. Rather, the similarities here included Neeley holding down the victims—who were much smaller than him and who had each willingly come to his residence for other reasons—on his bed with the weight of his body and performing sexual acts against their will. We find no abuse of discretion in the trial court’s ruling with respect to AL’s testimony. Notably, the court then discussed evidence regarding two other uncharged acts and declined to allow the evidence because the acts were not sufficiently similar, thereby demonstrating that it was aware of the relevant standards impacting its discretion. As to AA, the trial court explained: “I do find again that this is very similar based on the information I’ve heard so far. It is close in time. This is alleged to have happened in 2017, which is around the same time the conduct in this case happened. I understand that there was an objection to the fact that there was a reference to BDSM. We’ve heard that in this case already via our last witness, and the one witness that currently is in the witness chair. So I do believe that there—that actually supports a reason for including that evidence because of the similarities of the underlying conduct, the similarity regarding certain discussions including, I believe 20 this was the one that mentions rope. [¶] Even the defendant’s comments after the incident are similar in that incident involving AA, there’s a reference the defendant said I did not intend for that to happen. And from what we’ve heard so far in evidence in this case, there’s a similar statement along the lines ‘I did not intend to rape you.’ So when I look at the underlying facts of that incident, the facts in this case, I do find similarities. These happened close in time. They qualify under 1108. The Court would allow evidence regarding the incident involving Jane Doe, initials AA.” Neeley asserts that the evidence concerning AA was materially different than the other alleged victims, because two had an “on and off relationship,” and because, even by AA’s account, Neeley stopped before committing a sexual offense against AA. Again, Neeley offers no authority indicating that the same sexual offenses must be committed for evidence to be admissible under Evidence Code sections 1108 and 352. Regardless, the jury was entitled to hear all of this additional evidence which, if anything, minimized the impact of AA’s testimony. As the trial court pointed out, there nevertheless remained similarities in terms of Neeley’s behavior: Inviting AA into his home under other pretenses; lying on top of AA and using his body weight to trap her, a much smaller individual; at least initially not stopping when AA said no and tried to push him off; and then later stating that he did not mean for that to happen. The fact that Neeley did stop in that situation, with someone that he did have a more developed prior relationship with, does not negate these similarities. Again, we have no trouble concluding that the trial court did not abuse its discretion by admitting evidence related to AA under Evidence Code sections 1108 and 352. Further, even if we were to conclude that the trial court abused its discretion in either instance, which we do not, we would conclude that any 21 error was harmless, as it was not reasonably probable that Neeley would have received a more favorable result if the court had excluded the testimony from AL or AA. (See People v. Malone (1988) 47 Cal.3d 1, 22 [Watson harmless error analysis applies to erroneous admission of character evidence]; People v. Watson (1956) 46 Cal.2d 818, 836.) There was ample evidence related to the charged conduct involving seven different victims and that evidence established a clear pattern of Neeley contacting women (and underage girls) online and engaging in forceful and/or inappropriate sexual acts with them. There was forensic evidence related to LS’s case and cell phone evidence related to several of the other charged offenses. Neeley testified in his own defense and did not deny interacting with any of the alleged victims. He asserted that he believed LS and RH consented, that nothing sexual happened with JB, and that he believed each of the underage girls that he contacted on social media were 18 because they had accounts on either Venmo or Tinder. The jury was entitled to, and apparently did, reject his explanations. Moreover, as we have discussed, neither AL nor AA alleged that Neeley raped them. Rather, AL testified that he digitally penetrated her and then let her go after she continued to resist, and AA testified that Neeley also let her go before committing any sexual act. For the reasons we discussed, this established a pattern of Neeley taking women to his residence and then forcing himself on them, but it also suggested that he could, and did, stop in some situations. This was likely less impactful to the jury as compared to the testimony from LS and RH, describing how Neeley forcibly raped them. Finally, in closing argument the prosecutor briefly referred to the testimony from AL and AA, but then quickly went on to discuss the testimony from “all of these women,” including, primarily, those involved in the charged offenses.

22 Based on the totality of evidence in the record, we conclude that it is not reasonably probable that Neeley would have received a more favorable result without the testimony from AL or AA. C. The Trial Court Did Not Err by Instructing the Jury with a Proposed Pinpoint Instruction Regarding His Reasonable Belief of the Age of the Victims in Counts 7 Through 18 Neeley’s final contention is that the trial court erred by failing to give the following pinpoint instruction as requested by his counsel: “This instruction applies to each count where the complainant’s age is an element of the crime, specifically, Counts 7 through 18 inclusive. “As to each of these counts, Defendant is not guilty if he reasonably and actually believed that the complainant was 18 years old or older. Remember, you must consider each count separately. “In order for reasonable and actual belief to excuse the defendant’s behavior, there must be evidence tending to show that defendant reasonably and actually believed that the other person was age 18 or older. “The People have the burden of proving, beyond a reasonable doubt, that the defendant did not actually and reasonably believe the other person was under 18 years of age. “If you believe the defendant actually and reasonably believed the other person was 18 years of age or older, or if you have a reasonable doubt about this issue, you must find him not guilty.” The trial court noted Neeley’s request and stated that it did include such language under CALCRIM 1124. The court explained more specifically that it had included the following language: “[T]he defendant is not guilty of this crime if he actually and reasonably believed that the other person was 18 or older. In order for reasonable and actual beliefs to excuse the defendant’s behavior, there must be evidence tending to 23 show that he reasonably and actually believed that the other person was 18 or over. If you have a reasonable doubt that whether the defendant actually and reasonably believed that the other person was 18 or older, you must find the defendant not guilty.” The court concluded by stating, “Essentially, I’m granting this request by the defense.” The court then asked defense counsel, “does that paragraph included in 1124 take care of the issue you requested?” and defense counsel responded, “It does, your honor.” Accordingly, the trial court instructed the jury with CALCRIM No. 1124, including the foregoing language. In other words, the trial court never declined to give Neeley’s proposed instruction. Instead, it modified CALCRIM No. 1124 to include extremely similar language, albeit in a more abbreviated form. Neeley’s counsel agreed to this language and never asserted that it was insufficient. Rather, as Neeley concedes, the trial court may modify the language of a proposed instruction. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) Neeley asserts, summarily, that the modified language did not adequately instruct the jury regarding the impact of his reasonable belief regarding the age of the victims, but he fails to explain why, or to develop the argument. Again, although the trial court’s version was less verbose, it covers all of the same concepts as Neeley’s proposed instruction, including the prosecution’s burden of proof beyond a reasonable doubt. We have no reason to presume that the jury did not adequately understand and apply the instruction that was given. Although Neeley does not raise the issue, we acknowledge that CALCRIM No. 1124 addressed contacting a minor with intent to commit certain felonies, and was therefore relevant to counts 7, 9, 11, 13, 14, and 16, and not to counts 8, 10, and 15. CALCRIM No. 1140 covered those remaining counts and required, as an element, that “When the defendant acted, he knew, should have known, or believed that the other person was a minor.”

24 Thus, in reading the instructions together, we have no problem concluding the jury would have understood that for each of counts 7 through 16, Neeley was not guilty if he reasonably and actually believed the victims were 18 or older. III. DISPOSITION Affirmed.

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.