PEOPLE v. DABLON

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Claude Jean Jacques DABLON, Defendant and Appellant.

No. D018959.

Decided: October 17, 1994

John Leis Staley, Poway, under appointment by the Court of Appeal, for defendant and appellant. Daniel Lundgren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Holly D. Wilkens and John T. Swan, Deputies Atty. Gen., for plaintiff and respondent.

A jury found defendant Claude Jean Jacques Dablon guilty of committing a lewd or lascivious act on a child under the age of 14 years (Krystal) ( Pen.Code,2 § 288, subd. (a)), committing a lewd or lascivious act upon a 14–year–old child (Maia) (§ 288, subd. (c)), and annoying and molesting a child (Maia) (§ 647.6).   The jury found true allegations that Dablon was a stranger to each victim within the meaning of section 1203.066, subdivision (a)(3).

The court sentenced Dablon to a total term of 18 years, 4 months, consisting of 8 years on the conviction pertaining to Krystal, 1 year, 4 months on the convictions pertaining to Maia, 5 years on the prior serious felony conviction enhancement, 3 years on the prior violent felony conviction enhancement, and 1 year on the prior prison term felony conviction enhancement.

Dablon appeals, contending (1) the court erroneously instructed the jury regarding the definition of a lewd or lascivious act;  (2) the court erred by admitting Dablon's prior acts of child molestation;  (3) the court improperly allowed the victims to testify in the presence of a support person;  and (4) the three-year enhancement under section 667.5, subdivision (a) should be set aside or stayed.   We reject these contentions and affirm the judgment.

FACTUAL BACKGROUND

Maia

In the afternoon of August 15, 1992, 14–year–old Maia and her mother went to La Jolla Shores Beach.   While Maia was in the ocean, a man with an accent, whom Maia identified at trial as Dablon, began a casual conversation with her.

During the next 15 minutes Dablon talked intermittently with Maia and other swimmers about the weather and the ocean.   Then Dablon said to Maia, “You have a beautiful body.”   Maia felt this comment was inappropriate and responded, “No, I don't.”   Dablon also asked her to go into deeper water.   Maia, already neck-deep in the water, declined to do so.

Dablon stood between Maia and the shore.   When Maia attempted to leave by moving left or right, Dablon would block her path by mirroring her movements.   Then Dablon grabbed Maia.   He touched her breasts, moved his hands down to her buttocks and squeezed.   As he touched her, Maia said, “Don't, don't.”   The touching lasted a few seconds.   Maia started to cry and ran out of the water.

Maia returned to her mother in tears.   Maia and her mother reported the incident to a lifeguard.   Maia searched the beach for Dablon but could not find him.   The lifeguard sent for a police officer.

San Diego Police Officer Barbara Jean Cavanah investigated the case.   She put together a photographic spread which she sent to Maia (who lived in Arizona).   Maia identified Dablon from the photographs as the man who molested her.

Krystal

In September 1992, seven-year-old Krystal went to Torrey Pines State Beach with her grandmother Jacqueline Estes, her eight-year-old brother, and three older cousins.   Although Estes had never before met Dablon, Dablon approached the group and began showing Krystal and the other children sea creatures in plastic cups.

Dablon played with the children for several hours that day.   Estes was able to see the children most of the time from the picnic table where she sat.   When Estes tried to engage Dablon in conversation, he would not make eye contact.   Estes noted the children seemed to be having a good time with Dablon.

State Park Ranger Lundquist watched Dablon at Torrey Pines Beach for over two hours on this day.   Detective Cavanah had informed Lundquist that Dablon was under investigation and had been warned not to be in contact with children.   Lundquist saw Dablon walking with a group of children by the lagoon and scooping items into containers.   He took several pictures, some showing Dablon and Krystal holding hands.   Lundquist saw Dablon cross a deep part of the lagoon with Krystal.   The water was about three and half feet deep and flowing.   As the water grew deeper, Krystal reached up and grabbed the upper part of Dablon's right arm.   Dablon's right arm was submerged from the elbow down, as was Krystal from the waist down.

When the police and Estes initially questioned Krystal, she denied there had been any inappropriate touching.   Estes noted, however, that Krystal appeared uncharacteristically quiet and subdued.   The next evening Estes again spoke with Krystal about the events at the lagoon.   Krystal, appearing very embarrassed, admitted Dablon had touched her at the crotch of her bathing suit while they were crossing the deep water.

At trial, Krystal said that while she was at the beach that day she was in the water with Dablon and her brother.   The water was “up to [her] chest.”   While she was holding on to Dablon, his submerged hand touched her in the crotch.   Krystal also felt him touch her chest.   She testified the touchings hurt and made her feel bad.

Prior Incidents of Molest

Over Dablon's objections, the prosecution presented evidence showing Dablon had molested young girls in 1980 and in 1987.

In 1980, Tina was 11 or 12 years old.   Dablon was a friend of Tina's father and she knew him as “Frenchy.”   Tina first met Dablon when she was with her father at Black's Beach.   Dablon came to Tina's house many times.   On several occasions, Dablon molested her.   Dablon touched Tina on the chest and between her legs, both on top of and underneath her clothing.   When the molestations occurred, Tina's parents were usually at home in another room.   The incidents ended when Tina's mother caught Dablon in the act of molesting Tina.   Tina's 13–year–old sister later reported similar molestation to Detective Cavanah.   During a criminal investigation, Dablon admitted he had molested both girls.

In 1987, Rachel and Desiree, nine and eight years old respectively, told Detective Cavanah that Dablon had molested them.   Although they did not know Dablon, the girls played with him one day at La Jolla Shores Beach, making sand castles and catching sand crabs.   Rachel was jumping up and down because she was cold when Dablon grabbed her.   He put one hand over her bathing suit and between her legs as he swung her around.   He squeezed her between her legs so that it hurt.   Desiree said Dablon picked her up and put a knee in her crotch while swinging her.   When interviewed by Detective Cavanah, Dablon admitted molesting both girls.

Defense

Dablon did not testify at trial.   As Dablon's primary defense to the charges concerning Maia, defense counsel conceded Maia was molested but maintained Dablon was not the person who committed the molestation.   He pointed out that Maia's physical description of her perpetrator did not match Dablon's physical characteristics and presented evidence showing Dablon had a beard on the day of the incident (contrary to Maia's description of the perpetrator as clean-shaven).

As to the charge concerning Krystal, Dablon's counsel admitted Dablon spent time with Krystal at the beach, but argued he never touched her inappropriately and had no improper intent.   On the day of the incident, Dablon told the police officer that the children had been pestering him and there had been no inappropriate touching.

DISCUSSION

I.DEFINITION OF LEWD OR LASCIVIOUS TOUCHING *

II.

PRIOR ACTS OF CHILD MOLESTATION

 Dablon next contends the court erred in admitting evidence of his 1980 and 1987 acts of child molestation, maintaining the evidence was inadmissible under Evidence Code section 1101, subdivision (a).

Evidence Code section 1101, subdivision (a) prohibits admitting evidence of prior conduct to show a defendant's disposition to act similarly on a specific occasion.   However, evidence of a person's prior acts is admissible “when relevant to prove some fact (such as ․ intent, ․ identity, ․ or accident ․) other than his or her disposition to commit such an act.”   (Evid.Code, § 1101, subd. (b).)  As explained below, we conclude the evidence of Dablon's prior acts of abuse was properly admitted to show (1) Dablon intentionally touched Krystal between her legs for the purpose of arousing his sexual desires;  and (2) Dablon was the person who molested Maia.

A. Relevance of Prior Acts Evidence

1. Intent to Molest Krystal

 “ ‘[I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance.’ ”  (People v. Wade (1988) 44 Cal.3d 975, 990, 244 Cal.Rptr. 905, 750 P.2d 794, quoting from People v. Thompson (1980) 27 Cal.3d 303, 315, 165 Cal.Rptr. 289, 611 P.2d 883.)  “[S]uch prior conduct may be relevant circumstantial evidence of the actor's most recent intent.”  (People v. Robbins (1988) 45 Cal.3d 867, 879, 248 Cal.Rptr. 172, 755 P.2d 355.)

Like the charged offenses, Dablon's acts in 1980 and 1987 showed Dablon acquainted himself with young girls at the beach and ultimately touched them over their clothing between their legs and occasionally on the breast.   Dablon admitted these touchings constituted sexual molestations.   This evidence was therefore relevant to show the requisite mental state for a lewd or lascivious conviction, e.g., that Dablon's placing his hands between Krystal's legs was for the purpose of his sexual arousal.   Moreover, this evidence was admissible to establish Krystal's injuries did not arise from accidental means.   The fact that Dablon had molested girls in the past tended to show Dablon's grabbing Krystal's crotch was a deliberate act rather than merely an unintentional act while he was helping her in the water.   The prosecution was required to prove this point to establish its case against Dablon.

2. Identity of Person Who Molested Maia

 Using prior acts to establish identity requires a higher degree of similarity between the uncharged acts and the charged offense than that required for intent.  (People v. Delgado (1992) 10 Cal.App.4th 1837, 1844–1845, 13 Cal.Rptr.2d 703.)  “ ‘The pattern and characteristics of the crime must be so unusual and distinctive as to be like a signature.’ ”  (People v. Ewoldt (1994) 7 Cal.4th 380, 403, 27 Cal.Rptr.2d 646, 867 P.2d 757, quoting from 1 McCormick on Evidence (4th ed. 1992) § 190, pp. 801–803.)

 The 1980 and 1987 acts contain several distinctive similarities which satisfy even this more stringent standard.   First, the victims were all young girls ranging in age from seven to fourteen.   Second, Dablon met all his victims at the beach.   Third, each of Dablon's molestations was marked by his efforts to make friends with the victims (i.e. engaging them in conversation, making sand castles, hunting for sea creatures, etc.).   Fourth, in all acts he touched the girls over their clothing.   Fifth, the molestations took place either in public or while adults were nearby.   These similarities formed a distinctive pattern—in essence a signature which tended to prove Dablon's identity.   Contrary to Dablon's assertions, the fact there existed certain differences among the acts (e.g., that the molestations against Tina occurred at home and included touching under her clothing) was insufficient to eliminate the distinctive pattern.   We conclude the evidence was relevant to establish Dablon was the person who molested Maia.

B. Dablon was not Unfairly Prejudiced

 When evidence of prior offenses is presented to a jury, there is inherent danger of prejudice to an accused.   Therefore, such evidence should be received with caution and admitted only when its probative value outweighs its prejudicial effect.  (See People v. Malone (1988) 47 Cal.3d 1, 17, 252 Cal.Rptr. 525, 762 P.2d 1249.)

In permitting the evidence to come before the jury, the court listened to arguments on this issue and carefully balanced the probative value against the likely prejudice of the evidence.5  Several factors support the court's conclusion that it was unlikely the jury would consider the evidence for an improper purpose.   First, the potential for prejudice was decreased because evidence of the prior acts was “no stronger and no more inflammatory than the testimony concerning the charged offenses.”  (People v. Ewoldt, supra, 7 Cal.4th at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   Additionally, Dablon had previously admitted to the prior molestations;  therefore, the jury's attention was not diverted by the need to determine this issue.  (See People v. Balcom (1994) 7 Cal.4th 414, 427, 27 Cal.Rptr.2d 666, 867 P.2d 777.)   The jury also heard evidence showing Dablon was held criminally responsible for both sets of prior molestations.   Thus, the jury had no incentive to punish Dablon for the prior offenses.  (Ibid.;  People v. Ewoldt, supra, 7 Cal.4th at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

In referring to the prior acts evidence during closing argument, the prosecutor was careful to discuss such evidence solely in the context of intent and identity issues.   The court further specifically instructed the jury that it could consider the prior acts evidence only on identity and intent issues and could not consider the evidence to show that Dablon had a disposition to commit crimes.

Given the importance of the evidence to establishing the prosecution's case on several critical issues and the limiting instruction to the jury, the court did not err in admitting the evidence of the two instances of prior child molestations.

III.

SUPPORT PERSON

 At trial, both Maia and Krystal testified in the presence of a support person.   During Maia's testimony, her mother sat in the first row of the courtroom.   During Krystal's testimony, her grandmother sat next to Krystal on the witness stand.   Dablon contends his Sixth Amendment right to confrontation was violated because the minors were allowed to testify with the presence of a support person without a specific showing of need.

A.

Section 868.5, subdivision (a) provides that in cases involving a violation of section 288, a prosecuting witness is entitled to choose two “support persons,” one of which “may accompany the witness to the witness stand.”   Because of the danger of prejudice to the defendant, the Legislature specified that if the support person is to be called as a prosecution witness, the prosecution “shall present evidence that the person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness.”  (§ 868.5, subd. (b).)  The statute further provides “[t]he testimony of [a support person] ․ shall be presented before the testimony of the prosecuting witness.”  (868.5, subd. (c).)

 The courts have held that such procedures do not deny a defendant the right to a fair trial absent a specific showing the support person prejudicially affected the content of the witness's testimony.  (People v. Patten (1992) 9 Cal.App.4th 1718, 1724–1733, 12 Cal.Rptr.2d 284;  accord People v. Adams (1993) 19 Cal.App.4th 412, 436, 23 Cal.Rptr.2d 512;  see also Annot., Person Accompanying Witness (1990) 82 A.L.R.4th 1038.)

Dablon does not argue that the prosecution failed to satisfy the express statutory requirements or that a support person in fact prejudicially affected the content of Maia's or Krystal's testimony.   Relying exclusively on People v. Adams, supra, 19 Cal.App.4th 412, 23 Cal.Rptr.2d 512, Dablon instead contends we must reverse the judgment because the prosecution neglected to make an evidentiary record that Maia and Krystal had a specific need for their support persons.   The Attorney General concedes that the prosecution failed to establish that Krystal “needed” a support person to the extent required by Adams.   The Attorney General, however, urges us to decline to follow Adams and, in the alternative, to find that Dablon waived his right to assert error by failing to object during trial.   We address these issues below.

People v. Adams

Adams recognized that “[t]he procedure whereby the support person accompanies the witness at the stand is ․ not inherently prejudicial.”   (People v. Adams, supra, 19 Cal.App.4th at p. 436, 23 Cal.Rptr.2d 512.)   Adams nonetheless held that because a support person accompanying a witness at the witness stand has “an effect on jury observation of demeanor,” the support person infringes on a defendant's Sixth Amendment right to confront the witness.  (Id. at p. 441, 23 Cal.Rptr.2d 512.)   Because the state has a compelling interest in protecting child victims of sexual abuse, Adams determined the use of a support person was permissible, but only if the prosecution establishes a specific showing of need.  (Id. at pp. 443–444, 23 Cal.Rptr.2d 512.)   The court explained, “ ‘The trial court must hear evidence and determine whether the use of the ․ procedure is necessary to protect the welfare of the particular child witness ․ [including that] ․ the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.’ ”  (Id. at p. 443, 23 Cal.Rptr.2d 512, quoting from Maryland v. Craig (1990) 497 U.S. 836, 855–856, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666.) 6

 We question the validity of several of Adams 's conclusions.   First, the fact a trial procedure has the potential to “affect” a witness's demeanor does not necessarily mean a defendant's constitutional right to confrontation is implicated.   The primary purpose of the Confrontation Clause is to ensure a defendant has the right to “ ‘a face-to-face meeting with witnesses appearing before the trier of fact.’ ”  (Maryland v. Craig, supra, 497 U.S. at p. 844, 110 S.Ct. at p. 3162, quoting from Coy v. Iowa, supra, 487 U.S. at p. 1016, 108 S.Ct. at p. 2800;  Mattox v. United States (1895) 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409.)   While jury observation of a witness's demeanor is encompassed in the right to confrontation, the face-to-face meeting forms “ ‘the core of the values furthered by the Confrontation Clause’ ” (Maryland v. Craig, supra, 497 U.S. at pp. 847, 110 S.Ct. at pp. 3164, quoting from California v. Green (1970) 399 U.S. 149, 157, 158, 90 S.Ct. 1930, 1934–35, 1935, 26 L.Ed.2d 489) and permits the jury to observe the demeanor of the witness in making his or her statement.   The face-to-face meeting further provides the defense “a full and fair opportunity to probe and expose [testimonial] infirmities․”  (Id. at p. 847, 110 S.Ct. at 3164, quoting from Delaware v. Fensterer (1985) 474 U.S. 15, 22, 106 S.Ct. 292, 295, 88 L.Ed.2d 15.)

 The presence of a support person does not prevent a face-to-face confrontation or hinder a defendant's ability to question a witness.   Accordingly, the extent to which a support person affects the witness's demeanor “is a question of the weight to be given the testimony” rather than an issue of constitutional dimension.  (See People v. Patten, supra, 9 Cal.App.4th at p. 1729, 12 Cal.Rptr.2d 284.) 7

Moreover, even assuming a constitutional right was implicated, we disagree with Adams 's conclusion that the prosecution is required to present the same showing of need as was required in Maryland v. Craig, supra, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666.  Maryland v. Craig involved the constitutionality of a statutory procedure permitting a child witness to testify by a one-way, closed-circuit television.   The court held that because such procedure denied the defendant a face-to-face confrontation with his accuser, the statutory procedure was permissible only where the trial court finds the child would suffer serious emotional distress and be “traumatized” by the presence of the defendant in the courtroom.  (Id. at p. 856, 110 S.Ct. at 3169.)

The use of a one-way television to question a child witness constitutes a substantially greater infringement on a defendant's right to “probe and expose [testimonial] infirmities” (Maryland v. Craig, supra, 497 U.S. at p. 847, 110 S.Ct. at p. 3164) than does a procedure whereby a relative of a young child is permitted to sit next to that child during the child's testimony.   Under our present statutory scheme, neither Maia nor Krystal could use a support person unless the record showed (1) the support person would testify first;  (2) the child wanted a support person;  and (3) the use of the support person would be helpful.  (§ 868.5.)   This latter requirement that the support person is “helpful” encompasses the concept that the witness is “needed.”   Because a support person has a relatively minimal impact on a defendant's ability to question a witness, we disagree with Adams that such “need” can only be established if the witness would be severely traumatized without a support person.   Because the use of the support person preserves the defendant's right to face his accuser, section 868.5's express statutory requirements are sufficient to satisfy a defendant's constitutional rights.

B.

 In any event, even assuming we were to follow Adams, there was no prejudicial error.   First, Adams 's “need” requirement applies only when the support person physically accompanies a child witness during the child's trial testimony.  (People v. Adams, supra, 19 Cal.App.4th at pp. 437–441, 23 Cal.Rptr.2d 512.)   Maia testified on her own;  her mother sat in the front row of the audience portion of the courtroom.   Thus, even under Adams, there was no error with respect to Maia.

 With respect to Krystal, Dablon admits “[a] specific objection was not lodged to Krystal [ ] having a support person while she testified.”   Generally, the failure to object at trial constitutes a waiver.   Dablon urges us not to apply this general rule, relying on People v. Kabonic (1986) 177 Cal.App.3d 487, 223 Cal.Rptr. 41.  Kabonic held the trial court erred in permitting a child's mother to accompany her child at the witness stand because the prosecution failed to make a request for the support person “pursuant to a noticed motion” 8 and failed to show the mother's attendance was desired by the minor and would be helpful to the minor.  (Id. at pp. 496–497, 223 Cal.Rptr. 41.)   In so holding, Kabonic rejected the Attorney General's argument that the defendant waived his right to assert error.   (Ibid.)

Kabonic is distinguishable.   Unlike with respect to Krystal, the defendant in Kabonic did object to the use of the support witness under section 868.5.  (People v. Kabonic, supra, 177 Cal.App.3d at p. 496, 223 Cal.Rptr. 41.)   Further, the question here was whether Krystal “needed” her grandmother to accompany her at the witness stand.   There are many tactical reasons a counsel may want to permit a support person to accompany a witness, including that a jury may construe the witness's need to sit next to a relative as diminishing rather than supporting the witness's credibility.  (See State v. Johnson (1986) 38 Ohio App.3d 152, 528 N.E.2d 567, 571.)   For example, Dablon's counsel may have elected to “roll the dice” hoping the jury would use the presence of Krystal's grandmother to conclude that Krystal's statements reflected her attempt to please her grandmother rather than to tell the truth.   Under such circumstances, a defendant should not be permitted to sit silently during the course of his trial, create a situation which may be to his advantage or disadvantage, and then raise the issue on appeal.

Dablon alternatively contends that an objection to Krystal's support person would have been “futile” because the court had “already overruled the defense objection to Maia having a support person.”   The argument is not supported by the record.

Before trial, defense counsel objected to the use of Maia's mother as a support person solely because he was “concerned” that Maia would testify before her mother.   The prosecutor responded that it would be possible to call Maia's mother before Maia even though Maia's testimony should logically go first.   Defense counsel then stated:

“Well, I think counsel's right, that it may seem—it's going to seem a little out of order, but perhaps with broad latitude in examination, maybe it would be possible to do it that way, simply have the mother testify first.”

The court ruled that Maia could use her mother as a support person if the mother testified first.   The court then asked whether Krystal was going to “hav [e] a support person․”  When the prosecution answered in the affirmative, the following colloquy occurred:

“The Court:  ․ [W]here are you planning physically to have this person located?   Is she going to be next to the witness, seated in the back?   What are you contemplating?   Because I've seen it happen both ways, depending on the age and the personality of the alleged victim.

“[Prosecutor]:  In a jury trial I prefer to have the support person seated in the front row of the audience in the line of vision of the witness, and that is how I'm sure we will handle that with Maia.   I will defer to Krystal's request.   She has never testified in this case, and if she feels more comfortable having her mother, for example, sitting next to her at the witness stand I will make that request at the appropriate time.

“The Court:  You let us know ahead of time so I can hear from [defense counsel] with respect to any objection he might have as to any contemplated procedure.   I don't have any problem with the person in the front row.   I frankly have heard some horror stories about what other courts have done in that regard that I don't think are correct.   So there has to be a reasonable line that can be drawn in this.”  (Italics added.)

Immediately before the prosecution called Krystal as a witness at trial, the following exchange occurred outside of the jury's presence:

“[The Prosecutor]:  Your Honor, the Court had asked me to notify the Court of Krystal's wishes with regard to the support person.   She has asked that her grandmother, ․ who testified yesterday, be present in court and seated next to her.   With the Court's permission, I have placed a chair to the right of the witness stand and a little bit behind it, and if that procedure is agreeable with the Court—

“The Court:  I don't have any problem with that as long as its understood and the grandmother understands that there's to be no coaching, because I've seen this where girls of tender years look over and look for some guidance from their adult support person, understandable.   I've been that route.   I know how kids act.   But I can't permit both of them to be involved in it.

“The Prosecutor:  Right.

“The Court:  But absent that, I don't have any problem with it.”

Defense counsel never objected to the procedure, nor was there any suggestion in the record that the grandmother acted improperly or that there was any form of communication between Krystal and her grandmother during Krystal's testimony.

On this record, it cannot be reasonably inferred that it would have been “futile” for defense counsel to object to Krystal's grandmother presence on the witness stand.   The court made clear that it considered Krystal's request for a support person to be different from Maia's and that defense counsel should express an objection if he disagreed with the procedure.   Defense counsel failed to do so.   On such record, it would be unfair for us to consider an objection which could have been raised at trial.   Accordingly, we find Dablon failed to preserve the issue for appeal.

IV.

SENTENCING ISSUES

The court imposed a five-year enhancement based on a prior serious felony conviction (§ 667, subd. (a)) and a three-year enhancement based on a prior violent felony conviction.  (§§ 667.5, subd. (a).)  These enhancements derive from Dablon's committing two section 288, subdivision (a) offenses—one on April 1, 1976 and one on April 8, 1976.   Dablon was convicted of both offenses in a single trial in December 1976.

Section 667, subdivision (a)

 Dablon contends that because the prior charges were not “brought and tried separately” within the meaning of section 667, subdivision (a), the sentence imposed for the section 667.5, subdivision (a) enhancement should be set aside.

Section 667, subdivision (a) provides:

“․ [A]ny person convicted of a serious felony [including § 288, subd. (a) ] ․ shall receive ․ a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”  (Italics added.)

Section 667.5, subdivision (a) provides:

“․ [I]n addition and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior was one of the violent felonies [including section 288, subdivision (a) ].   However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

Under section 667, subdivision (a), only one five-year enhancement could be imposed for Dablon's 1976 conviction.   The court in fact imposed only one five-year enhancement.   Under section 667.5, subdivision (a), one three-year term could be imposed for the prior prison term served based on the second section 288, subdivision (a) conviction.   The court in fact imposed only one three-year enhancement.   Dablon argues, however, that the three-year enhancement was improper because it circumvented section 667, subdivision (a)' s “brought and tried separately” requirement.   We disagree.

In People v. Wiley (1994) 25 Cal.App.4th 159, 164, 30 Cal.Rptr.2d 701, we recently rejected a similar argument and approved a trial court's imposition of a section 667 enhancement based on one prior conviction and a section 667.5 enhancement based on another prior conviction, even though the crimes were tried in a single trial.  (Accord People v. Irvin (1991) 230 Cal.App.3d 180, 189, 281 Cal.Rptr. 195;  People v. Medina (1988) 206 Cal.App.3d 986, 990–991, 254 Cal.Rptr. 89.)   In so holding, we found the defendant's reliance on People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 to be misplaced because in Jones, the trial court had imposed a section 667 enhancement and a section 667.5 enhancement for the same prior offense.  (People v. Wiley, supra, 25 Cal.App.4th at p. 164, 30 Cal.Rptr.2d 701.)   In Wiley, as here, the basis of the section 667 and 667.5 enhancements were two different and separate offenses.

We reject Dablon's argument, asserted during oral argument, that Wiley was wrongly decided.   Accordingly, we conclude the court's imposition of the three-year enhancement pursuant to section 667.5, subdivision (a) did not violate section 667, subdivision (a).

Section 654

 Dablon alternatively contends the section 667.5 sentence enhancement should be stayed because section 654 9 bars the imposition of both enhancements.

Even assuming section 654 applies to enhancements,10 the enhancements before us do not give rise to multiple punishment for the same act within the meaning of section 654.   Section 654 is inapplicable because the two prior convictions are neither the same act nor a continuous course of conduct indivisible in time since the two acts occurred seven days apart.   Further, the courts have recognized that section 654 does not apply to two separate enhancements under sections 667 and 667.5.  (See People v. Medina, supra, 206 Cal.App.3d 986, 254 Cal.Rptr. 89.)   We therefore conclude that section 654 did not preclude the enhancements imposed here.

DISPOSITION

Judgment affirmed.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote 1, ante.

5.   Before trial, the prosecutor sought to admit two additional acts of prior child molestation, consisting of (1) a 1976 incident resulting in a conviction for two counts of violation of section 288, subdivision (a), and (2) a 1979 incident which did not result in a criminal conviction.   The court chose to exclude this evidence because although sufficiently similar for relevance on the intent issue, they lacked the degree of similarity required for the issue of identity.

6.   Applying these principles, Adams held the prosecution's failure to make a specific showing that the minor needed her father to accompany her at the witness stand constituted prejudicial error.   The court emphasized that “ ‘An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered ․ [because] such inquiry would obviously involve pure speculation․’ ”  (People v. Adams, supra, 19 Cal.App.4th at p. 444, 23 Cal.Rptr.2d 512, quoting from Coy v. Iowa (1987) 487 U.S. 1012, 1021–1022, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857.)

7.   Although Patten did not explicitly address whether the support person procedure violates a defendant's right to confrontation, the court did state that “the absence of a requirement of a case-specific showing of necessity does not ․ make this statute unconstitutional per se.   This is so because procedures available to utilize support persons pursuant to the statute would not infringe any constitutional rights.”   (People v. Patten, supra, 9 Cal.App.4th at p. 1727, 12 Cal.Rptr.2d 284.)

8.   The Legislature has since eliminated the requirement for a noticed motion.  (See § 868.5;  People v. Patten, supra, 9 Cal.App.4th at p. 1728, fn. 3, 12 Cal.Rptr.2d 284.)

9.   Section 654 provides in pertinent part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

10.   The question of whether section 654 applies in general to enhancements has been left undecided by our Supreme Court.  (People v. Jones, supra, 5 Cal.4th at p. 1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163;  People v. King (1993) 5 Cal.4th 59, 78, fn. 5, 19 Cal.Rptr.2d 233, 851 P.2d 27.)   Decisions of the courts of appeal are split.  (Compare People v. Rodriguez (1988) 206 Cal.App.3d 517, 519, 253 Cal.Rptr. 633 with People v. Hopkins (1985) 167 Cal.App.3d 110, 117–118, 212 Cal.Rptr. 888.)

NARES, Associate Justice.

TODD, Acting P.J., and HUFFMAN, J., concur.