People v. Garcia

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOSE JESUS GARCIA et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Mar 12, 2018

No. E064247 (Cal. Ct. App. Mar. 12, 2018)

Opinion

E064247

03-12-2018

THE PEOPLE, Plaintiff and Respondent, v. JOSE JESUS GARCIA et al., Defendants and Appellants.

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant Jose Jesus Garcia. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Lazaro Garcia. David Arredondo for Defendant and Appellant Homero Garcia. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

FIELDS J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1203092) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed in part and reversed in part with directions. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant Jose Jesus Garcia. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Lazaro Garcia. David Arredondo for Defendant and Appellant Homero Garcia. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants and appellants, Jose Jesus Garcia (Jose), Lazaro Garcia (Lazaro), and Homero Garcia (Homero), were convicted by the same jury of committing sex offenses against at least one of three children under age 10: Jane Doe 1 (Jane), her brother John Doe (John), and their maternal cousin, Jane Doe 2 (Jane 2).¹ The crimes were committed in a Moreno Valley home that defendants shared with John, Jane, and their parents. Jane 2 often visited the home. Lazaro and Jose are paternal uncles and Homero is a paternal cousin of John and Jane.

1 For ease of reference and meaning no disrespect, we will refer to each defendant by his first name as each defendant's last name is Garcia.

Homero was convicted in counts 1 and 2, and Lazaro in counts 3 and 4 of having sexual intercourse with Jane, a child under age 10. (Pen. Code, § 288.7, subd. (a).)² Homero and Lazaro were each sentenced to 50 years to life in prison (two consecutive terms of 25 years to life).

2 All further statutory references are to the Penal Code unless otherwise indicated.

Jose was convicted of the remaining charges in counts 5 through 14: in counts 5, 6, and 7, of forcibly sodomizing John, a child under age 14 (§ 269, subd. (a)(3)); in counts 8, 9, and 10, of forcible lewd acts with John, a child under age 14 (§ 288. subd. (b)(1)); in count 11, of having sexual intercourse with Jane 2, a child under age 10 (§ 288.7, subd. (a)); in count 12, of having sexual intercourse with Jane, a child under age 10 (§ 288.7, subd. (a)); and in counts 13 and 14, of committing lewd acts on Jane, a child under age 14 (§ 288, subd. (a)). The jury found two enhancement allegations true against Jose: in count 14, that Jose engaged in substantial sexual conduct with Jane (§ 1203.066, subd. (a)(8)) and, in the present case, that Jose committed a sex offense against more than one victim within the meaning of the "One Strike" law (§ 667.61, subd. (e)(4)). Jose was sentenced to an aggregate term of 95 years to life.

All three defendants claim their Penal Code section 288.7 convictions must be reversed on ex post facto grounds. Homero also claims insufficient evidence supports his Penal Code section 288.7 convictions, because Jane's testimony was too conflicting and inconsistent to support the verdicts in counts 1 and 2. Lazaro raises four claims of error concerning the admission of Jane 2's testimony, under Evidence Code section 1108, that Lazaro and Homero took turns having sexual intercourse with her on one occasion in the Moreno Valley home. Lazaro and Jose claim their sentences constitute cruel or unusual punishment under the state and federal Constitutions. Each defendant challenges the court's imposition of fines pursuant to Penal Code section 290.3 on ex post facto grounds, and Jose claims his $300 restitution fine must be reduced to $200.

We reverse Lazaro's conviction in count 4 on ex post facto grounds. As we explain, the evidence is insufficiently definite to show that Lazaro committed at least two section 288.7 offenses against Jane on or after September 20, 2006, when the statute went into effect. Thus, one of Lazaro's two section 288.7 convictions must be reversed. We also conclude that Lazaro's section 290.3 fines must be reduced from $800 (for two convictions) to $300 (for one conviction), and that Jose's section 290.3 fines must be reduced from $4,800 to $3,200. Thus, we remand the matter with directions to (1) strike Lazaro's 25-year-to-life sentence on count 4, (2) reduce Lazaro's section 290.3 fines from $800 to $300, and (3) reduce Jose's section 290.3 fines from $4,800 to $3,200.

After the parties filed their briefs on appeal, we granted Lazaro's request for leave to file a supplemental opening brief requesting a limited remand to conduct Franklin proceedings. (People v. Franklin (2016) 63 Cal.4th 261, 286-287; People v. Costella (2017) 11 Cal.App.5th 1, 9-10.) The People have filed a letter brief conceding that the request should be granted. We grant the request. On remand, Jose and Homero may also seek to demonstrate their eligibility for Franklin proceedings.

In all other respects, we affirm the judgments.

II. FACTUAL BACKGROUND

A. Background

At the times of the alleged offenses, John and his younger sister, Jane, lived with their father, P.G., and their mother, E.D., in a home in Moreno Valley. John was born in May 1999, Jane in March 2001. They lived in the Moreno Valley home from birth until January 2011. At the time of trial in June 2015, John was age 16 and Jane was age 14. Jose and Lazaro were P.G.'s brothers and paternal uncles of Jane and John. Homero was P.G.'s nephew and a paternal cousin of Jane and John. Homero and Lazaro moved into the family's Moreno Valley home in 2002. Jose moved in later, in 2002 or 2003. Jose was born in 1980, Lazaro in 1983, and Homero in 1984. Sometimes, defendants would watch Jane and John while P.G. and E.D. were working or were not at home.

Lazaro and Homero shared a room in the home and Jose had his own room. Jose moved out in 2006, moved back in 2007, and moved out again in 2009 or 2010. Lazaro moved out for a few months in 2006, during which time Homero had his own room. Lazaro moved back in 2006, and moved out again in 2009 or 2010. Homero lived in the home from 2002 until late 2010 or 2011. Other people also lived in the home at various times, including Jose's girlfriend in 2006, and Homero's girlfriend in 2007 or 2008.

John and Jane's maternal cousin, Jane 2, was born in December 1998 and was age 16 at the time of trial. Jane 2 lived in Northern California, and she and her family often drove down to the Moreno Valley home to celebrate birthdays and holidays during the times defendants lived there. When Jane 2 was five or six years old, she and her siblings lived in the Moreno Valley home for around three months while their mother was in Mexico. B. Homero's Sexual Abuse of Jane (Counts 1 & 2)

In testifying at trial, the first incident of sexual abuse Jane could recall occurred with Homero. One day, Homero took Jane's hand and pulled her into his room. John took Jane's other hand and tried to pull her out of the room, but Homero told John to let go, then closed the door. Homero took Jane to the bed, pulled her pants and underwear down, then took off his pants but left his boxer shorts on. As Jane lay with her back on the bed and her legs hanging off the bed, Homero inserted his penis into Jane's vagina. Jane was either in kindergarten, first, or second grade when this incident occurred, and she repeated the first grade. Jane was age five when she started kindergarten around September 2006. Jane estimated Homero had sex with her approximately once a month from the time she was in kindergarten until she was in second grade, and, as noted, she repeated the first grade.

John was walking down the hall past Homero's room one day when he saw Homero insert the tip of his penis into Jane's vagina. John recalled that Jane was four or five years old when the incident occurred, and that the incident occurred "sometime" after Jose began molesting John, when John was five or six years old (discussed post). C. Lazaro's Sexual Abuse of Jane (Counts 3 & 4)

Jane also testified Lazaro sexually abused her when she was five or six years old. Jane told Lazaro one of her teeth had fallen out. Lazaro told Jane he had a tooth fairy in a box, and Jane had to have sex with him in order to get to the tooth fairy. Jane lay on the bed on her back with her feet on the ground. Lazaro pulled her pants and underwear down and then pulled his own pants down. Lazaro put his mouth on Jane's vagina and then he inserted his penis into her vagina. After he finished, Jane looked into the box but didn't see anything. Lazaro had sexual intercourse with Jane more than five times, and the incidents stopped when she was seven to nine years old. D. Jose's Sexual Abuse of John, Jane and Jane 2 (Counts 5-14)

1. Jose's Sexual Abuse of John (Counts 5-10)

On one occasion, when John was around five or six years old, Jose and John were alone in the house. Jose lured John into Jose's bedroom by offering to give John gum. After John went into Jose's bedroom, Jose gave John the gum, then closed and locked the bedroom door. Jose pulled John's pants down, bent John over the bed, and inserted the tip of his penis into John's "butt." John kept trying to pull away and told Jose "it hurt," but Jose pulled John back and told him, "'Stay still. It won't hurt.'" Jose ejaculated away from John, and they both left the bedroom.

For the next couple of months, Jose put his penis into John's "butt" at least two to four times each week. John did not recall the last occasion Jose did this to him, but the abuse occurred over two months to slightly more than four months. On some of the occasions, Jose would offer to show John pornography that Jose kept in a box in his bedroom. The frequency of the abuse "slowed down" after Jose's girlfriend and her infant daughter moved into the house in 2005 or 2006, and stopped by the time Jose, the girlfriend, and the daughter moved out in 2010 or 2011.

2. Jose's Sexual Abuse of John and Jane, and of Jane and Jane 2 (Counts 11-14)

When Jane was six or seven years old, she and John were in Jose's bedroom, lying face down on the bed, not wearing their pants or their underwear, and Jose pulled his pants down. Jane saw Jose insert his penis into John's "butt," then Jose inserted his penis into Jane's "butt."

On another occasion, when Jane was older than age six but younger than age 10, Jose offered gum to Jane and Jane 2. Jose, Jane, and Jane 2 went into Jose's bedroom, and Jose locked the door. Jose put Jane and Jane 2 on the bed and pulled down their pants and underwear. Jose touched Jane 2's breasts with his penis, and put his penis into Jane 2's vagina, then inserted his penis in Jane's vagina. The incident occurred during a birthday party. E. Lazaro's and Homero's Uncharged Sexual Intercourse with Jane 2

On one occasion, when Jane 2 and her siblings were staying at the Moreno Valley home while their mother was in Mexico, Lazaro took Jane 2 into his room. Jane 2 saw either Lazaro or Homero come out of the hallway shower with a towel on, then enter the room through a window. At that point, Lazaro and Homero were both in the room with Jane 2, and they "took turns" inserting their penises into Jane 2's vagina. F. Jane's Initial Disclosure and the Riverside County Child Assessment Team (RCAT) Interviews of Jane and John

The People and Jose stipulated that, on May 5, 2011, when Jane was interviewed by the Contra Costa Sheriff's Department in another matter, Jane described an incident that occurred in the Moreno Valley home in which Jane saw Jose "on top of" Jane 2, on a bed, with their clothes on and groins touching. Jane was in the room when the incident happened, but did not recall what preceded the incident, and demonstrated the incident with a pair of dolls.

One night in August 2011, Jane was crying in the kitchen of a new home she was sharing with her mother E.D. and John, and E.D. asked Jane whether anyone had done anything to her. Initially, Jane said "[n]o," but responded affirmatively after E.D. repeated the question. In response to E.D.'s questions, Jane revealed that Jose, Lazaro, and Homero had "raped" her. The next day, after John came home from school, E.D. asked John whether any of defendants had touched him inappropriately. John then told E.D. about Jose's sexual abuse of him. That same day, E.D. called the police.

On November 14, 2011, RCAT conducted forensic interviews of Jane and John, and video recordings of the interviews were played for the jury. (Evid. Code, § 1360.)

1. Jane's RCAT Interview

At the time of her November 2011 RCAT interview, Jane was 10 years old and in the fourth grade. During the interview, Jane said that when she was "like five years old" and in kindergarten, all three defendants—Jose, Lazaro, and Homero—would "rape" her. Jane explained that when she was in kindergarten she would come home from school, and either Homero, Lazaro, or Jose would "grab" her hand, take her to "the room," and "rape" her. Jane said each defendant raped her more than once.

Jane specifically described the incident in which Homero "grabbed" her hand, took her into "the room" and raped her, after her brother John grabbed her hand and tried to get her out of the room, but Homero told John to leave Jane alone. Jane also described the incident in which Jose gave Jane and Jane 2 gum, and the "tooth fairy" incident with Lazaro. Jane did not tell her mother about the molestations when they occurred because she was "scared" and thought her grandmother would "hate" her if defendants went to jail.

2. John's RCAT Interview

John was 12 years old at the time of his RCAT interview on November 14, 2011. John told the interviewer that when he was around five or six years old, his uncle, Jose, would take him to Jose's room at their house in Moreno Valley and give him gum or pornography. Jose would pull John's pants down, drop his own pants, and then put his penis in John's "butt." This happened more than once. It would happen when his parents were working or gone. Sometimes John would squeeze his bottom to try to stop Jose but Jose would "[g]rab[] on and . . . pull it open." Sometimes he would try to get away and Jose would grab him. The last incident occurred a couple of years earlier, when John estimated he was still five or six years old. John only told his mother about the molestations a few weeks before the RCAT interview because he was afraid. He thought Jose would do something to his family. John also saw Homero put his penis in Jane's vagina, in Homero's room in their house in Moreno Valley. Homero and Lazaro were babysitting John and Jane at the time.

III. DISCUSSION

A. Defendants' Ex Post Facto Claims (Counts 1-4, 11, & 12) and Homero's Substantial Evidence Claim (Counts 1 & 2)

The jury found each defendant guilty as charged of two counts of violating section 288.7, subdivision (a): Homero in counts 1 and 2 (both against Jane), Lazaro in counts 3 and 4 (both against Jane), and Jose in counts 11 (against Jane 2) and 12 (against Jane). Each defendant claims his section 288.7 convictions must be reversed on ex post facto grounds, because the People did not prove they committed the seven offenses on or after September 20, 2006, the effective date of the statute. (Stats. 2006, ch. 337, § 9, p. 2590.)

We reject Homero's and Jose's ex post facto claims. As we explain, the jury was instructed it had to find that the charged section 288.7 offenses occurred on or after September 20, 2006, and substantial evidence shows Homero committed counts 1 and 2, and Jose committed counts 11 and 12, on or after this date.

We agree, however, that the evidence was insufficiently definite to show that Lazaro committed at least two section 288.7 offenses against Jane on or after September 20, 2006; accordingly, we reverse Lazaro's section 288.7 conviction in count 4.

1. Applicable Legal Principles, Instructions, and Standard of Review

Section 288.7 was enacted in 2006 and became effective September 20, 2006. (Stats. 2006, ch. 337, § 9, p. 2590; People v. Rojas (2015) 237 Cal.App.4th 1298, 1306.) Section 288.7, subdivision (a) prescribes a 25-year-to-life term for any person, age 18 or older, who engaged in sexual intercourse or sodomy with a child age 10 or younger.

The ex post facto clauses of our state and federal Constitutions prohibit "any statute which punishes as a crime an act previously committed, which was innocent when done," and any statute which increases the punishment for a crime after its commission. (People v. Delgado (2006) 140 Cal.App.4th 1157, 1163-1164; U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; Beazell v. Ohio (1925) 269 U.S. 167, 169-170.) Thus, "it is the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment" (People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 260), and "any application of section 288.7 to conduct that occurred prior to September 20, 2006 is a violation of the state and federal ex post facto clauses" (People v. Rojas, supra, 237 Cal.App.4th at p. 1306).

The amended information alleged counts 1 through 4, 11, and 12 were committed "on or about September 20, 2006, through and including March 2, 2008." The jury was instructed that it could not convict defendants in any of these counts unless it was "convinced beyond a reasonable doubt that those crimes did in fact occur on or after September 20, 2006." (See CALCRIM No. 207 [Proof Need Not Show Actual Date], italics added.) During closing argument, the prosecutor told the jury it could not convict defendants of the section 288.7 charges unless it found that defendants committed the offenses on or after September 20, 2006.

The jury was also given a unanimity instruction on the section 288.7 charges: "The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged." (See CALCRIM No. 3501 [Unanimity: When Generic Testimony of Offense Presented].)

Thus, the jury was correctly instructed that it could not convict defendants of the section 288.7 charges unless it found the offenses occurred on or after September 20, 2006. The jury was also correctly instructed that it had to unanimously agree on the act or acts supporting each section 288.7 charge. Defendants do not claim the jury was erroneously instructed in these or any other aspects of the section 288.7 offenses. Instead, defendants claim the prosecution did not meet its burden of proving that the section 288.7 offenses occurred on or after September 20, 2006.

Because the jury was correctly instructed on the law applicable to the section 288.7 charges, including that the offenses had to be committed after September 20, 2006, our standard of review or "the test on appeal" of defendants' ex post facto claims is whether a jury comprised of reasonable persons could have found, based on substantial evidence, that the prosecution met its burden of proving beyond a reasonable doubt that the section 288.7 offenses occurred on or after September 20, 2006. (People v. Johnson (1980) 26 Cal.3d 557, 576.) In reviewing the record for substantial evidence— evidence that is reasonable, credible, and of solid value—we do not limit our review to the evidence favorable to the judgment. (Ibid.) Rather, we review the entire record in the light most favorable to the judgment and presume in support of the judgment every fact the trier could have reasonably deduced from the evidence. (Id. at pp. 576-577.)

In contrast, when the jury is not instructed that it must find an offense occurred on or after the effective date of the statute criminalizing or increasing the penalty for the offense, the test on appeal is whether the record "leaves no reasonable doubt" the offense occurred after the effective date of the statute. (People v. Rojas, supra, 237 Cal.App.4th at p. 1306 [where jury not instructed to find § 288.7 offense occurred on or after September 20, 2006, test on appeal is whether evidence "'leaves no reasonable doubt'" the conviction was based on incident occurring after this date]; People v. Hiscox, supra, 136 Cal.App.4th at pp. 257-261 [applying same standard to whether crimes occurred prior to the November 30, 1994, enactment of § 667.61, where the defendant received enhanced sentence under One Strike law]; People v. Riskin (2006) 143 Cal.App.4th 234, 243-246 [remanding matter for resentencing when the defendant sentenced under One Strike law, and evidence failed to show crimes occurred following enactment of § 667.61].) As the People argue, Rojas, Hiscox, and Riskin are "easily distinguishable," because the juries in these cases were not instructed that they had to find the charged offenses occurred after the relevant statutes were enacted, for ex post facto purposes, but here the jury was instructed that it had to find beyond a reasonable doubt that the section 288.7 offenses occurred on or after September 20, 2006.

2. Homero's Section 288.7 Offenses (Counts 1 & 2)

Homero was charged with two counts of having sexual intercourse with Jane, on or after September 20, 2006, through March 2, 2008. (§ 288.7, subd. (a).) The evidence presented at trial showed Jane was born in March 2001, turned age five in March 2006, and started kindergarten around September 2006, when she was around five and one-half years old. Jane testified about an incident in which Homero took her by the hand, pulled her into his room, and "raped" her, after John grabbed her other hand and tried to pull her out of the room. Jane testified she was in kindergarten, first, or second grade when this incident occurred, and she repeated the first grade.

Jane also testified Homero had sex with her approximately once a month from the time she was in kindergarten until she was in second grade. Jane thus indicated that Homero had sex with her approximately once each month over a four-year period, beginning when she was in kindergarten. Jane's trial testimony constitutes substantial evidence, and based on this evidence the jury reasonably could have found Homero guilty as charged of having sexual intercourse with Jane on at least two occasions after September 20, 2006—in addition to and excluding the incident in which John tried to pull Jane out of the room with Homero.

Homero claims Jane's trial testimony was too "generic" to establish he had sexual intercourse with Jane on at least two occasions on or after September 20, 2006. We disagree. "In Jones, our Supreme Court articulated 'the minimum quantum of proof necessary to support a conviction on one or more counts based on . . . generic testimony' from victims of child molestation. ([People v. Jones (1990) 51 Cal.3d 294, 314].) 'The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., "twice a month" or "every time we went camping"). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., "the summer before my fourth grade," or "during each Sunday morning after he came to live with us"), to assure the acts were committed within the applicable limitation period.' (Id. at p. 316, italics in original.) Compliance with these three minimum prerequisites is essential to preserve the defendant's right to a unanimous jury verdict. (Id. at p. 321.)" (People v. Hiscox, supra, 136 Cal.App.4th at p. 260.) Jane's trial testimony met these three minimum prerequisites: Jane testified to the kinds of acts Homero committed (sexual intercourse), the number of times the acts occurred (approximately once each month), and the general time period in which the acts occurred (from the time Jane was in kindergarten until she was in second grade).

Homero further argues the evidence is too conflicting and inconsistent to establish he had sexual intercourse with Jane on at least two occasions on or after September 20, 2006. In a separate argument, Homero claims insufficient evidence supports the jury's guilty verdicts in counts 1 and 2 for essentially the same reason: the evidence he had sexual intercourse with Jane on at least two occasions after September 20, 2006, is too weak, inconsistent, and conflicting to amount to substantial evidence.

In support of these arguments, Homero relies on several conflicting or inconsistent statements by John, Jane, and Jane 2. Homero notes that John testified Jane was five or six years old when John tried to pull Jane out of the room with Homero, thus placing this incident as early as March 2006, when Jane turned age five, and before section 288.7 went into effect on September 20, 2006. Thus, Homero argues John indicated that Homero left the door partially open during this incident, but Jane testified Homero closed the door "all the way," "thereby making it impossible for [John] to see what he purports to see," and rendering John's recollection of what he saw Homero doing in the room with Jane (putting the tip of his penis into Jane's vagina) "inherently not credible." Homero argues John's testimony concerning this incident was not credible for a second reason: John "inexplicably" did not tell E.D. about the incident when, in August 2011, John told E.D. Jose had sodomized him. Homero also notes that Jane initially testified at trial that she did not recall Homero having sex with her more than one time, and she lied during her RCAT interview when she said Homero had sex with her more than once.

Homero's reliance on John's and Jane's inconsistent statements is unavailing. The jury reasonably could have credited John's testimony that he saw Homero put the tip of his penis into Jane's vagina. The jury could have believed John witnessed the incident before the door to the room was closed, or could have believed the door was not completely closed. During her RCAT interview, Jane said Homero did not completely close the door. Moreover, and as Jane acknowledged at trial, Jane testified at the preliminary hearing that Homero had sex with her once a month, beginning when she was in kindergarten and ending when she was in second grade. After Jane initially testified at trial that she did not recall Homero having sexual intercourse with her more than once, Jane was confronted with her preliminary hearing testimony, and testified her memory was better at the time of the preliminary hearing in 2013 than it was either at the time of trial in 2015 or at the time of her RCAT interview in 2011.

Lastly, Homero notes that when Jane 2 was interviewed by Detective Darren Mannion after the preliminary hearing, Jane 2 did not implicate him in any acts of sexual abuse. Then, shortly before trial, Jane 2 disclosed an incident in which Lazaro and Homero took turns having sexual intercourse with her. Thus, Homero argues he was "swept into the matter and painted with the same brush" as Jose and Lazaro, even though he was not charged with any crimes against Jane 2. But nothing Jane 2 said or did not say, at the time, undermines the sufficiency of the evidence against Homero in counts 1 or 2, which are based on Jane's prior testimony at the preliminary hearing that Homero had sexual intercourse with Jane once a month from the time Jane was in kindergarten and ending when Jane was in second grade.

3. Lazaro's Section 288.7 Offenses (Counts 3 & 4)

Lazaro claims the People failed to prove he had sexual intercourse with Jane on at least two occasions on or after September 20, 2006, and before March 2, 2008. We agree; however, the evidence was sufficient to show that Lazaro had sexual intercourse with Jane at least once on or after September 20, 2006.

At trial, Jane could not recall whether Lazaro had sex with her on more than one occasion. Jane was only able to recall one incident of sexual intercourse with Lazaro—the incident in which Lazaro told Jane he had a tooth fairy in a box. Jane could not recall her age when this incident occurred, but she believed she was five or six years old. Jane turned age five in March 2006, and was around age five and one-half when she began kindergarten around September 2006. Thus, Jane's trial testimony was insufficiently definite to show that the incident involving the tooth fairy occurred on or after September 20, 2006.

During her 2011 RCAT interview, Jane said Lazaro had sexual intercourse with her "[m]ore than one time" but she also said all of the incidents of sexual intercourse with defendants, including Lazaro, occurred when she was in kindergarten. Lazaro was the last defendant Jane recalled having sexual intercourse with because Jose had a girlfriend at the time. At trial, E.D. testified Jose had a girlfriend who moved into the Moreno Valley home, possibly in 2005, that Jose and his girlfriend moved out in 2006, and that Jose moved back into the home in 2007. Thus, Jane's trial testimony and RCAT interview statements were insufficiently definite to show Lazaro had sexual intercourse with Jane on or after September 20, 2006.

During the 2013 preliminary hearing, when Jane's memory of the incidents of sexual abuse was best, Jane testified Lazaro had sexual intercourse with her more than five times, and the incidents stopped when Lazaro moved out of the home when Jane was seven, eight, or nine years old. E.D. testified Lazaro moved out of the home in 2006, but moved back in 2006 after "[m]aybe some months," and permanently moved out of the home in 2009 or 2010. Jane turned age seven in March 2008, age eight in March 2009, and age nine in March 2010.

Although substantial evidence shows Lazaro had sexual intercourse with Jane at least five times, the evidence is insufficiently definite to show that at least two of these incidents occurred on or after September 20, 2006, when Jane was around five and one-half years old. As discussed, the incident with the tooth fairy could have occurred before September 20, 2006. But the evidence clearly shows Lazaro had sexual intercourse with Jane at least once when Jane was age seven, eight, or nine—because Jane testified at the preliminary hearing that the incidents with Lazaro stopped when she was age seven, eight, or nine. Thus, the evidence is sufficiently definite to support one of Lazaro's convictions in counts 3 and 4 of violating section 288.7, subdivision (a), by having sexual intercourse with Jane on or after September 20, 2006. The other four or more incidents of sexual intercourse with Lazaro could have occurred before September 20, 2006. Jane never pinned down the timing of any of these other incidents. Thus, we affirm Lazaro's conviction in count 3 but reverse his conviction in count 4.

4. Jose's Section 288.7 Offenses (Counts 11 & 12)

Jose claims the evidence is insufficient to show he committed the section 288.7 offenses charged in counts 11 and 12 on or after September 20, 2006. Count 11 is based on the incident in which Jose had sexual intercourse with Jane 2 after offering gum to Jane and Jane 2. Count 12 is based on one of two incidents: the one in which Jane claimed Jose had sexual intercourse with her just after he had sexual intercourse with Jane 2, or the one in which Jose sodomized Jane by inserting his penis into her "butt" shortly after he sodomized John. As noted, the jury was given a unanimity instruction on each of the section 288.7 charges, including counts 11 and 12. Jose emphasizes that Jane 2 could not recall her exact age when count 11 occurred, and Jane made conflicting statements concerning when the two incidents underlying counts 11 and 12 occurred, thus placing the dates of all three incidents possibly before September 20, 2006.

Jane was born in March 2001, and was five years six months old on September 20, 2006. Jane 2 was born in December 1998, and was seven years nine months old on September 20, 2006. Regarding when the "gum" incident occurred, in which Jose had sexual intercourse with Jane 2 and Jane (counts 11 & 12), Jane 2 testified she was "probably" older than age five or six years but younger than age 10. Jane did not know how old she was when the gum incident occurred, but testified she was "[l]ike" age "6, 7."

Based on this testimony, the jury reasonably could have inferred that the gum incident occurred after March 2007, when Jane turned age six. In March 2007, Jane 2 was age eight years three months—within the range of Jane 2's estimate of her age of older than age five or six but younger than age 10 when the gum incident occurred.

Thus, substantial evidence shows the gum incident occurred after September 20, 2006, and this evidence is sufficient to support Jose's convictions in counts 11 and 12. It is therefore unnecessary to consider whether substantial evidence shows that the alternative incident underlying count 12—the incident in which Jose sodomized Jane—also occurred on or after September 20, 2006. B. Lazaro's Four Claims Concerning Jane's Evidence Code Section 1108 Testimony and CALCRIM No. 1191 Lack Merit

Lazaro raises several claims of prejudicial error concerning the admission of Jane 2's testimony that Lazaro and Homero took turns having sexual intercourse with her on one occasion when she was visiting the Moreno Valley home. Jane 2's testimony on this point was admitted as propensity evidence against Lazaro and Homero, pursuant to Evidence Code sections 352 and 1108, and was not admitted against Jose. Neither Homero nor Jose challenge the admission of the testimony.

Lazaro claims his convictions in counts 3 and 4 must be reversed because: (1) the untimely disclosure of the evidence violated Penal Code section 1054.7 and his due process rights to notice and an opportunity to investigate and prepare a defense to the evidence; (2) the trial court abused its discretion in admitting the evidence; (3) Evidence Code section 1108 violates the due process and equal protection rights of sex offense defendants; and (4) the instruction concerning use of the evidence, CALCRIM No. 1191, "interfered with the presumption of innocence" and allowed the jury to infer his guilt in counts 3 and 4 based on a standard of proof of less than a reasonable doubt.

We address these claims in turn and conclude each of them lack merit.

1. Relevant Background

On the first day of testimony, the prosecutor advised the court that earlier that morning she learned for the first time from Jane 2, who had just traveled from Northern California to Riverside to testify at trial, that both Lazaro and Homero had had sex with Jane 2 on another occasion when Jane 2 was visiting the Moreno Valley home. Jane 2 was the alleged victim in the section 288.7 charge against Jose in count 11, but Lazaro and Homero were not charged with committing any crimes against Jane 2. The prosecutor explained that, around three years earlier, she sent an investigator to interview Jane 2 in Northern California, but at that time Jane 2 did not disclose the incident with Homero and Lazaro. When the prosecutor asked Jane 2 why she did not earlier disclose the incident with Lazaro and Homero, Jane 2 said she did not want to "make this a bigger issue" and she did not feel comfortable speaking with the investigator because he was a male.

As soon as the prosecutor finished speaking to Jane 2, the prosecutor sent a text message to defense counsel and then spoke on the phone with them. The prosecutor explained to the court that Jane 2's new statement had been recorded, the investigator was preparing a report, and she would turn the report and recording over to the defense as soon they were available. Lazaro's counsel objected to the admission of the evidence. The prosecutor argued there were no grounds to exclude the evidence because there was no discovery violation. (Pen. Code, § 1054.7.) The prosecutor sought to admit the evidence only against Lazaro and Homero as propensity evidence pursuant to Evidence Code section 1108, and did not seek to add any new charges against Lazaro and Homero based on the new evidence. The prosecutor said she would wait to call Jane 2 as a witness until defense counsel had had a chance to review the report and recording of Jane 2's new statement. The following morning, defense counsel confirmed they had received the discovery from the prosecutor, and the court advised counsel it would hold an Evidence Code section 402 hearing to determine whether the new evidence would be admitted pursuant to Evidence Code sections 352 and 1108.

The hearing was held the next morning, after defense counsel had an opportunity to review the discovery concerning Jane 2's new statement. Jane 2 did not testify, but the prosecutor offered that Jane 2 would testify she was left in the Moreno Valley home alone with defendants while her mother went to the store, and either Homero or Lazaro took her into the bedroom where they both sexually assaulted her. Jane 2 used the word "rape" to describe the incident. Jane 2 said the incident occurred when she was six years old, around 2004.

Counsel for Lazaro and Homero objected to the admission of the evidence on two grounds: (1) late disclosure—the evidence was not disclosed at least 30 days before trial (Pen. Code, § 1054.7), and the prosecutor should have spoken to Jane 2 before Jane 2 traveled to Riverside; and (2) the evidence would confuse the issues (Evid. Code, § 352). When asked to explain why the evidence should be admitted, the prosecutor argued there had been no discovery violation, and pointed out she did not know Jane 2 was a victim of any defendant until Jane testified at the preliminary hearing, in March 2013, about observing an incident between Jane 2 and Jose. Following the preliminary hearing, the prosecutor had her investigator travel to Northern California to interview Jane 2, but at that time Jane 2 did not disclose anything about the incident with Lazaro and Homero. After Jane 2 came to Riverside for trial, the prosecutor briefly introduced herself to Jane 2. Jane 2 said, " I haven't told you everything," and revealed that Homero and Lazaro had sexually assaulted or "raped" her. The prosecutor had her investigator question Jane 2 and notified defense counsel about the new information. The prosecutor also argued the evidence was admissible under Evidence Code sections 1108 and 352.

The trial court ruled that the new testimony from Jane 2 was admissible against Lazaro and Homero, pursuant to Evidence Code sections 1108 and 352. Addressing these two defendants' counsel, the court stated: "I agree it hurts your case . . . . There's no question. All evidence under [Evidence Code section] 1108, whether you agree with [Evidence Code section] 1108 or not, is going to be damaging to a defense case. The real issue is whether or not you need additional time to be prepared to question [Jane 2] about this additional information. And I think I mentioned to you initially at the outset I would be inclined to give you whatever time you thought was appropriate to get prepared once you received the actual statement. [¶] So if you are prepared to question her on this information today, that's fine. If you say no, Judge, I need till Monday to do it, I guess I'll have to give you till Monday. But I'm going to throw that time frame back into your court as far as questioning because I'm inclined to and will in fact let it in, but I don't want to let it in to the point where you are not prepared to question her about it." (Italics added.) Counsel for Lazaro and Homero both said they needed no additional time to prepare.

Following the hearing, Jane 2 testified that on one occasion while her mother was in Mexico and Jane and John's mother, E.D., was at the store, Jane 2 was in the bedroom with both Lazaro and Homero and each one inserted his penis into her vagina. Jane 2 admitted she did not reveal this information to the defense investigator and disclosed it for the first time only a few days before she testified at trial.

2. Jane 2's Testimony About Uncharged Sex Offense Was Timely Disclosed

Evidence Code section 1108 "permits, in a criminal action for a sex offense, the admission of evidence of the defendant's commission of another sex offense, subject only to the restrictions of Evidence Code section 352." (People v. Fitch (1997) 55 Cal.App.4th 172, 175-176.) Subdivision (b) of Evidence Code section 1108 requires the People to disclose to the defense any evidence it intends to offer under the statute, "including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code." This provision is intended to "'protect the defendant from unfair surprise and provide adequate time for preparation of a defense.'" (People v. Soto (1998) 64 Cal.App.4th 966, 980.) Penal Code section 1054.7 requires the parties to disclose discoverable material and information "at least 30 days prior to the trial," and to "immediately" disclose discoverable material and information that "becomes known to, or comes into the possession of, a party within 30 days of trial."

Lazaro claims the People violated these discovery provisions and his due process right to notice and an opportunity to prepare a defense, by not disclosing, until early during trial, Jane 2's statement that Lazaro and Homero each had vaginal intercourse with her on a single occasion when she was visiting the Moreno Valley home. We disagree. There was no discovery or due process violation.

"California courts long have interpreted the prosecutorial obligation to disclose relevant materials in the possession of the prosecution to include information 'within the possession or control' of the prosecution." (In re Littlefield (1993) 5 Cal.4th 122, 135.) Information within the possession or control of the prosecution encompasses information "'reasonably accessible'" or "'readily available'" to the prosecution. (Ibid.) Jane 2's statement that Homero and Lazaro had vaginal intercourse with her was not within the possession or control of the prosecution until early during trial, in June 2015, when Jane 2 disclosed the information to the prosecutor the morning Jane 2 arrived to testify at trial.

As discussed, Jane 2 first disclosed the information to the prosecutor when Jane 2 arrived in Riverside to testify at trial, and the prosecutor immediately disclosed the information to the defense. Jane 2 did not disclose the information, in May 2013, when the prosecutor's investigator interviewed her. Thus, the People had no reason to know about Jane 2's undisclosed information about Homero and Lazaro until Jane 2 disclosed the information for the first time during trial.

By immediately disclosing Jane 2's new information to the defense as soon as she learned of it, the prosecutor complied with the letter and spirit of Penal Code section 1054.7 and Evidence Code section 1108, and did not violate Lazaro's due process right to notice of the new information. Due process of law is not "a guarantee that no previously unknown witness will suddenly become known during trial." (People v. Hammond (1994) 22 Cal.App.4th 1611, 1622.) As the Hammond court noted: "A trial is not a scripted proceeding. . . . witnesses who have been interviewed vacillate or change their statements . . . ." (Id. at p. 1624.) Though Jane 2 was a known witness before trial, her statement about Lazaro and Homero was not known before trial.

Additionally, "[t]here is a significant difference between failure to gather evidence immediately or to find all evidence that might subsequently become important and willful failure to comply with discovery orders." (People v. Hammond, supra, 22 Cal.App.4th at p. 1623.) The prosecution did not willfully fail to disclose Jane 2's new statement about Lazaro and Homero, or deliberately withhold notice of its intent to use the statement, until the time of trial. Indeed, Lazaro does not claim the prosecutor could have discovered or disclosed Jane 2's new statement any earlier than she did.

Lastly, there is no indication that the prosecution's discovery and disclosure of Jane 2's new statement, during trial, prejudiced the defense. (People v. Watson (1956) 46 Cal.2d. 818, 836.) When the court ruled the statement would be admitted, it advised counsel for Lazaro and Homero that it would give them all the time they needed to prepare to question Jane 2 about the statement. Both counsel said they needed no additional time.

3. Jane 2's Testimony Was Properly Admitted (Evid. Code, §§ 352, 1108)

We next address Lazaro's claim that the court abused its discretion in admitting Jane 2's new testimony pursuant to Evidence Code sections 1108 and 352.³ Lazaro claims the probative value of the testimony was substantially outweighed by its "undue confusion and prejudice," because it showed Lazaro and Homero had "gang raped an underage female and that neither had been prosecuted or punished for that conduct." We conclude the testimony was properly admitted.

3 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 Section 1101, if the evidence is not inadmissible pursuant to Section 352."

"When a defendant is accused of a sex offense, Evidence Code section 1108 permits the court to admit evidence of the defendant's commission of other sex offenses, thus allowing the jury to learn of the defendant's possible disposition to commit sex crimes. [Citation.] The court has discretion under Evidence Code section 352 to exclude the evidence if it is unduly prejudicial. [Citation.] The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters. [Citation.] The court's ruling admitting the evidence is reviewed for abuse of discretion. [Citation.]" (People v. Cordova (2015) 62 Cal.4th 104, 132, italics added.)

In determining whether the prejudicial effect of other sex offense evidence substantially outweighs its probative value, "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 . . . excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta); People v. Avila (2014) 59 Cal.4th 496, 515.)

Lazaro claims the Evidence Code section 1108 evidence was bound to sow "undue confusion and prejudice" in the minds of the jurors, because it showed he and Homero had "gang raped" Jane 2 and were not punished for that crime. We disagree that the trial court was required to exclude the evidence for these reasons. Indeed, "[n]othing about the evidence here required the trial court to find the presumption in favor of admissibility had been overcome." (People v. Loy (2011) 52 Cal.4th 46, 62.)

Jane 2's testimony that Lazaro and Homero took turns having sexual intercourse with her, on one occasion in the Moreno Valley home, was strikingly similar to Jane's testimony that these defendants individually had sexual intercourse with her, on separate occasions in the same home, as charged in counts 1 through 4. As such, Jane 2's testimony was highly probative of whether Lazaro and Homero had a propensity to commit the charged offense against Jane. (People v. Avila, supra, 59 Cal.4th at p. 499- 500, 516 [evidence the defendant sexually molested three young girls "extremely probative" of whether he later kidnapped, committed lewd and lascivious acts on, and killed five-year-old girl]; cf. People v. Harris (1998) 60 Cal.App.4th 727, 738-740 [uncharged sex offense evidence inflammatory "in the extreme" in part because of its dissimilarity and remoteness to the charged offenses].)

By reason of Evidence Code section 1108, prior sex offense evidence is no longer considered "unduly prejudicial per se." (Falsetta, supra, 21 Cal.4th at pp. 916-917.) Rather, it is considered "'particularly probative and necessary for determining the credibility of the witness'" accusing the defendant of the charged sex offenses. (Id. at pp. 911-912.) And given the striking similarity of Jane 2's and Jane's testimony, Jane 2's testimony was by its nature no more inflammatory than Jane's.

Additionally, any risk that Jane 2's testimony would confuse the issues, distract the jury from its main inquiry of determining Lazaro's guilt of the charged crimes, or tempt the jury to convict Lazaro of the charged crimes in order to punish him for his uncharged offenses against Jane 2, was eliminated by CALCRIM No. 1191 (Evidence of Uncharged Sex Offense). This instruction limited the jury's consideration of Jane 2's Evidence Code section 1108 testimony to whether it showed that Lazaro and Homero had a propensity to commit the charged offenses against Jane. The instruction told the jury to consider the Evidence Code section 1108 evidence for the sole purpose of determining whether Homero and Lazaro "were disposed or inclined to commit sexual offenses" and for no other purpose. Absent a showing to the contrary, which Lazaro had not made here, we presume the jury followed the instruction. (People v. Merriman (2014) 60 Cal.4th 1, 48-49.)

4. Due Process and Equal Protection

Lazaro next argues that the admission of Jane 2's testimony pursuant to Evidence Code section 1108 violated his rights to due process and equal protection. We reject these constitutional claims.

Regarding Lazaro's due process claim, our Supreme Court has held that Evidence Code section 1108 does not violate due process, because it gives the trial court discretion to exclude evidence of the defendant's uncharged sexual misconduct under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th at pp. 910-922.) Pursuant to the settled doctrine of stare decisis, we are bound by our Supreme Court's decision in Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Lazaro points out that the doctrine of stare decisis is not rigidly applied, and that "reexamination of precedent may become necessary when subsequent developments indicate an earlier decision was unsound, or has become ripe for reconsideration." (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 297.) This rule allows courts to reexamine their own precedents, but it does not allow this court to reexamine our Supreme Court's precedents. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense."].)

Lazaro nonetheless urges this court to conclude that Falsetta was wrongly decided in view of the Ninth Circuit's slightly more recent decision in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, reversed on other grounds in Woodford v. Garceau (2003) 538 U.S. 202. We decline to do so, both because the rule of stare decisis prohibits it and because Lazaro's reliance on Garceau is unpersuasive. Garceau had nothing to do with admissibility of prior sex crimes evidence under Evidence Code section 1108, and did not even consider Falsetta.

In Garceau, the defendant was charged with murder, and the prosecution introduced evidence that he manufactured illegal drugs and had previously committed murder. (Garceau v. Woodford, supra, 275 F.3d at p. 773.) The jury was instructed that it could consider the other crimes evidence for any purpose, including but not limited to defendant's character or his conduct on a specific occasion. (Ibid.) The trial court refused to give a limiting instruction that the others crimes evidence could not be considered to prove bad character or disposition to commit crimes. (Ibid.) The Garceau court held that, where there is a permissible inference the jury could draw from other crimes evidence, the defendant's due process rights are violated if the jury is "expressly invited to draw the additional inference of criminal propensity." (Id. at p. 775.) Thus, Garceau had nothing to do with the admissibility of prior sexual misconduct in a child molestation case under Evidence Code section 1108. Also, Falsetta held that trial courts must, when requested, give a limiting instruction on the permissible use of Evidence Code section 1108 evidence. (Falsetta, supra, 21 Cal.4th at pp. 923-924.) As discussed, the trial court here gave such a limiting instruction in the form of CALCRIM No. 1191.

In addition, rule 414 of the Federal Rules of Evidence (28 U.S.C.) is analogous to Evidence Code section 1108, and permits the introduction of uncharged acts of child molestation to show a defendant's propensity. Rule 414(a) of the Federal Rules of Evidence provides: "In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant." In United States v. LeMay (9th Cir. 2001) 260 F.3d 1018 at pages 1025 to 1031, the Ninth Circuit upheld rule 414 of the Federal Rules of Evidence against due process and equal protection challenges.

Lastly, we observe that our appellate court colleagues in Fitch considered and rejected substantially the same due process and equal protection challenges to Evidence Code section 1108 that Lazaro raises here. (People v. Fitch, supra, 55 Cal.App.4th at pp. 178-185.) Fitch concluded that Evidence Code section 1108 did not violate the defendant's right to equal protection, because the Legislature reasonably could create an exception to the rule prohibiting propensity evidence for sex offense cases, given the serious nature of such crimes, and because such crimes are usually committed in secret and result in trials that are primarily credibility contests. (People v. Fitch, supra, at p. 184.) As Fitch observed, "[t]his reasoning provides a rational basis for [Evidence Code section 1108]." (Ibid.) Although Falsetta did not involve an equal protection challenge to the statute, Falsetta cited with approval Fitch's due process and equal protection reasoning. (Falsetta, supra, 21 Cal.4th at pp. 917-918; People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395 [agreeing with Fitch's equal protection analysis].) We follow Falsetta, Fitch, and Waples, and reject Lazaro's constitutional challenges to Evidence Code section 1108.

5. CALCRIM No. 1191

We also reject Lazaro's final claim concerning the admission of Jane 2's Evidence Code section 1108 testimony that CALCRIM No. 1191 violated his right to due process because it erroneously allowed the jury to infer he was guilty of the charged crimes based solely on his propensity to commit sex crimes, and thus lessened the prosecution's burden of proving his guilt of the charged crimes beyond a reasonable doubt.

As Lazaro recognizes, our Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007 at pages 1012 to 1016, rejected the same due process challenge to CALJIC No. 2.50.01, the precursor instruction to CALCRIM No. 1191. Following Reliford, several appellate courts have rejected due process challenges to CALCRIM No. 1191 on the ground it is similar in all material respects to CALJIC No. 2.50.01, in that both instructions state that evidence of uncharged sex offenses, alone, is insufficient to prove the defendant's guilt of the charged offenses, and the People have the burden of proving each element of the charged offenses beyond a reasonable doubt. (People v. Anderson (2012) 208 Cal.App.4th 851, 895; People v. Schnabel (2007) 150 Cal.App.4th 83, 87; People v. Cromp (2007) 153 Cal.App.4th 476, 480.) We are bound by the Reliford decision (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455) and we agree with these subsequent appellate court decisions applying its holding to CALCRIM No. 1191. Thus, we reject Lazaro's due process challenge to CALCRIM No. 1191. C. Any Prosecutorial Error in Failing to Admonish Detective David Tinker Not to Refer to the Children as a "Victim" or "Victims" Was Harmless

Lazaro claims the prosecutor committed "misconduct" in failing to admonish her witness, Detective David Tinker, not to refer to Jane, John, or Jane 2 as a "victim" or "victims."⁴ We conclude any error was harmless.

4 As the People point out, Lazaro frames his claim as involving prosecutorial "misconduct," but the record does not indicate that the prosecutor intentionally or knowingly committed any misconduct. Thus, Lazaro's claim is appropriately characterized as one of prosecutorial "error" rather than "misconduct." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 ["We observe that the term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error."]; People v. Centeno (2014) 60 Cal.4th 659, 666-667.)

1. Relevant Background

During a pretrial hearing, Jose's counsel moved the court to order counsel and the witnesses from referring to Jane, John, or Jane 2 as "victims," other than during opening and closing arguments. The prosecutor responded that she did not usually refer to her witnesses as "victims," but instead referred to them by their names. The trial court noted it was not aware of any authority requiring it to grant the motion, but advised the prosecutor not to refer to the children as victims until closing argument. The court explained its ruling as follows:

"I'm essentially granting [defense counsel's] request. The idea would be that if somehow the People slipped up and accidentally referred to someone as a victim in their opening or during the presentation of evidence, there's a good chance I'm not going to grant a mistrial motion for that. In fact, I had a defense lawyer make the motion, and then it was the defense lawyer who called the person the victim. That's how ingrained in the culture of our criminal justice system these sort of labels are. But I recognize that the jurors, you know, don't have the same mindset as all of you do who have been doing this a long time and are used to the lingo, and it doesn't affect your job one way or the other. So I recognize all that.

"I'm just going to say to the People that they should make every effort not to refer to these individuals as victims. And like I've told you before, it has been successful, and they have made every effort. And if they slip up someplace and you want to object, that's fine. If they repeatedly did it, I would have a big problem . . . with that.

"[The prosecutor] has done many trials in here, and I've never had a problem with that issue with her, and I've made the same request of her many, many times, and I know she will do her best to honor that request.

"And I'm going farther than you've asked me to go because I think you said limited to opening and closing. I'm saying don't even call them victims in opening. Not even in opening. Only closing argument. Unless there's some—something on point on all four, . . . that I have to do that, that's going to be my ruling essentially on your request." (Italics added.)

During the direct examination of Detective Tinker, the second to last prosecution witness, the following exchange took place:

"[THE PROSECUTOR:] Okay. Did you interview [Jane]?

"[DETECTIVE TINKER:] No.

"[THE PROSECUTOR:] Why not?

"[DETECTIVE TINKER:] We have a common practice. If any children are victims of sex crimes or any type of major crime

"[LAZARO'S COUNSEL]: I'm going to object. [Evidence Code section] 352.

"THE COURT: Sustained. The answer is stricken. [¶] Rephrase your question.

"[THE PROSECUTOR]: Why did you not interview [Jane] yourself?

"[DETECTIVE TINKER:] Because we have a forensic interviewer do the interviews.

"[THE PROSECUTOR:] Did you do that in this case, have a forensic interviewer do it?

"[DETECTIVE TINKER:] Yes.

"[THE PROSECUTOR:] Before you—how do you set that up?

"[DETECTIVE TINKER:] When I received the case, the initial report, after I read it and figured it out, the first thing we do is we schedule forensic interviews for the victims.

"[THE PROSECUTOR:] So that was the first thing you did in this case?

"[LAZARO'S COUNSEL]: I'd object. I'd like to have a hearing.

"[JOSE'S COUNSEL]: Yes.

"THE COURT: Sustained. Answer is stricken." (Italics added.)

The foregoing exchange spans a single page of the reporter's transcript. Following the exchange, the court held a hearing outside the presence of the jury, after counsel for Lazaro again asked to be heard.

During the hearing, Lazaro's counsel noted that the prosecutor had used the word "victim" twice during her opening statement but he had not objected at that time.⁵ Lazaro's counsel then pointed out that Detective Tinker had used the word twice in the first few moments of his testimony. The trial court asked the prosecutor whether she had admonished Detective Tinker on the subject, to which the prosecutor responded that no one had asked her to do so. She then indicated her belief that the court's in limine ruling was merely to the effect that she could not refer to the complaining witnesses as victims, not that none of her witnesses could do so. The court told the prosecutor she was "splitting hairs," then directed the prosecutor to admonish the detective not to use the term "victim" again in his testimony. The detective complied with the directive.

5 Opening statement is not part of the normal record on a criminal appeal (Cal. Rules of Court, rule 8.320(c)(3)), and counsel's opening statements were not made part of the record on this appeal.

2. Any Prosecutorial Error Was Harmless

The People argue Lazaro has forfeited his claim of prosecutorial error because his counsel did not ask the court to admonish the jury to disregard the detective's references to Jane, John, or Jane 2 as "victims." (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) The People also claim there was no prosecutorial error because the detective's use of the terms "victim" and "victims" was not responsive to the prosecutor's questions, the prosecutor did not use the terms herself, and was not ordered to admonish her witnesses not to use the terms. Lazaro alternatively claims his trial counsel rendered ineffective assistance—if his counsel forfeited this claim of error by failing to request a curative admonition. It is unnecessary to address any of these claims because any error on the part of the prosecutor in failing to admonish the detective not to use the word "victim" was harmless under any standard of review.

The detective used the words "victim" and "victims" only once in responding to the prosecutor's questions concerning the forensic interview process. The detective was describing his general practice whenever any child is the "victim" of sex abuse or other major crime, and the detective did not refer specifically to Jane, John, or Jane 2 as victims. Thus, the detective's use of the terms was brief and innocuous.

Moreover, the trial court sustained defense counsel's objections to the detective's use of the word "victim" and "victims," and the court struck the testimony. Before any testimony was presented, the court instructed the jury: "If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose." The court gave the same instruction following the close of the evidence: "If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose." (Italics added.) (CALCRIM No. 222 [Evidence].) As noted, a jury is presumed to follow the court's instructions, absent evidence to the contrary (People v. Merriman, supra, 60 Cal.4th at pp. 48-49) and there is no indication here that the jury did not follow the court's instruction to disregard the detective's testimony, which included the words "victim" and "victims." D. Lazaro's Reduced Sentence of 25 Years to Life on Count 3, and Jose's 95-Year-to Life Sentence, Do Not Constitute Cruel or Unusual Punishment Under the State or Federal Constitutions

Lazaro and Jose claim their life sentences constitute cruel or unusual punishment under the state and federal Constitutions. (U.S. Const., 8th Amend; Cal. Const., art. I, § 17.) We reject these claims. Because we reverse Lazaro's conviction in count 4 and direct the trial court to strike his 25-year-to-life sentence on count 4, we consider Lazaro's claim to relate to his 25-year-to-life sentence on count 3.

Both the federal and state Constitutions require that the punishment fit the crime. Under the prevailing view, the Eighth Amendment of the federal Constitution is violated when a sentence is "'grossly disproportionate'" to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Similarly, article I, section 17 of the California Constitution is violated when the punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; People v. Dillon (1983) 34 Cal.3d 441, 478.)

Under Lynch, as refined in Dillon, we generally apply a three-pronged test in determining whether a sentence constitutes cruel or unusual punishment. (People v. Cuevas (2001) 89 Cal.App.4th 689, 702.) We (1) examine the nature of the offense and offender, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) measure the punishment to the penalty for the same offense in different jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.)

In applying the first prong of the Lynch analysis, we examine the defendant's personal characteristics, including his or her age, prior criminality, and mental capabilities. (People v. Lucero (2000) 23 Cal.4th 692, 739.) We also consider the circumstances of the current offenses, including the defendant's motive in committing the offense, the manner in which the crime was committed, and the consequences of the defendant's acts. (Ibid.; People v. Dillon, supra, 34 Cal.3d at p. 479.)

The Lynch/Dillon analysis "merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each prong depends on the facts of the specific case. [Citation.] Determinations whether a punishment is cruel or unusual may be made based on the first prong alone. [Citations.] The defendant has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. [Citation.]" (People v. Ayon (1996) 46 Cal.App.4th 385, 398-399, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)

As we explain, Lazaro's and Jose's sentences are not grossly disproportionate to their crimes, and do not shock the conscience given the horrendous nature of the crimes. In other words, Lazaro's and Jose's claims fail solely on the first prong of the Lynch/Dillon analysis.

1. Lazaro's Reduced Sentence Is Neither Cruel nor Unusual

Lazaro was sentence to 50 years to life (two consecutive 25-year-to-life terms) for his convictions in counts 3 and 4 for having sexual intercourse with Jane, a child under age 10, on two occasions. (Pen. Code, § 288.7, subd. (a).) But on remand, his sentence on his reversed conviction in count 4 will be stricken, and he will remain sentenced to 25 years to life on count 3. Lazaro's prior criminal record consisted of two misdemeanor convictions for driving under the influence in 2008 and 2009. (Veh. Code, § 23152, subd. (b).) The trial court noted these convictions had "no impact" on Lazaro's sentence.

Lazaro declined to be interviewed by the probation officer; thus, the record contains little information concerning his social history. Lazaro was born in December 1983, and moved into the Moreno Valley home during 2002, when he was around age 18. He moved out of the home in 2009 or 2010, when he was age 26 or 27 and Jane was age eight or nine.

The nature of Lazaro's sex offense against Jane was horrendous. Jane was Lazaro's niece and she was a young and vulnerable child under age 10 when the crime was committed. (§ 288.7, subd. (a).) Jane's parents often trusted Lazaro and the other defendants, Jose and Homero, to care for Jane and John while they were away from the home. Lazaro took advantage of that trust and used it to sexually exploit Jane. As the court noted at sentencing, defendants were "just sort of all acting together" to sexually abuse Jane, John, and Jane 2. The impact of Lazaro's crime on Jane and her family was egregious and life-changing. E.D. told the probation officer she was worried her family was "falling apart." Based on the egregious nature of Lazaro's crime, and its impact on Jane and her family, his 25-year-to-life sentence on count 3 is not grossly disproportionate to his crime and does not shock the conscience.

2. Jose's Sentence Is Neither Cruel nor Unusual

Jose was sentenced to 95 years to life. As noted, Jose was convicted of forcibly sodomizing John in counts 5, 6, and 7 (§ 269, subd. (a)(3)); committing forcible lewd acts on John in counts 8, 9, and 10 (§ 288. subd. (b)(1)); having sexual intercourse with Jane and Jane 2 in counts 11 and 12 (§ 288.7, subd. (a)); and committing lewd acts on Jane in counts 13 and 14 (§ 288, subd. (a)). The jury found Jose engaged in substantial sexual conduct with Jane in count 14 (§ 1203.066, subd. (a)(8)) and committed a sex offense against more than one victim in the present case within the meaning of the One Strike law (§ 667.61, subd. (e)(4)).

Based on the multiple-victim enhancement, the court sentenced Jose to 15 years to life on counts 5 through 10, 13, and 14 (§ 667.61, subds. (b), (e)(4)), but stayed the terms on counts 8, 9, 10, 13, and 14 (§ 654), resulting in a sentence of 45 years to life (three consecutive terms of 15 years to life) on counts 5, 6, and 7. The court imposed two consecutive 25-year-to-life terms on counts 11 and 12 (§ 288.7, subd. (a)), resulting in an aggregate sentence of 95 years to life.

Jose declined to be interviewed by the probation officer; thus, the record contains little information concerning his social history.⁶ Jose was born in 1980 and moved into the Moreno Valley home around 2002 or 2003, when Jose was around 22 or 23 years old. When he committed the sex offenses against Jane, John, and Jane 2, Jose was in his mid-20's, and all three of the victims were under the age of 10.

6 According to the probation report, Jose had a 2000 felony conviction for violating Health and Safety Code section 11379, subdivision (a), but the court struck the conviction after Jose disputed he was the person who suffered the conviction.

Jose's sex offenses were especially egregious because they were numerous, occurred over several years, and were committed against not one but three young and vulnerable children. Jose took advantage of a position of trust to sexually exploit all three children, and two of the children, John and Jane, were his nephew and niece. The impact of Jose's crimes on the children and their families was predictably extreme. Based on the nature of Jose's crimes, his 95-year-to-life sentence is not grossly disproportionate to his crimes and does not shock the conscience. E. The Section 290 .3 Fines Imposed Against Homero Were Properly Imposed, But Lazaro's and Jose's Section 290 .3 Fines Must be Reduced

Pursuant to section 290.3, the court imposed $800 in fines against Homero on counts 1 and 2; $800 in fines against Lazaro on count 3; and $4,800 in fines against Jose on counts 5 through 14. Each defendant claims these fines must be reduced on ex post facto grounds.

Section 290.3 requires the court to impose fines against a defendant convicted of a sex offense listed in section 290, subdivision (c). All of defendants' convictions are listed in that statute; thus, all of the convictions qualify for section 290.3 fines.

Section 290.3 was amended, effective September 20, 2006, to require the court to impose a $300 fine for the first conviction and a $500 fine for the second and each subsequent conviction. (Stats. 2006, ch. 337, § 18, p. 2610.) Before September 20, 2006, section 290.3 required a $200 fine for the first conviction and a $300 fine for the second and each subsequent conviction. (Stats. 2006, ch. 69, § 27, p. 1264.)

Homero and Lazaro argue their $800 in fines must be reduced to $500 pursuant to former section 290.3, because the prosecution failed to prove they committed their section 288.7 offenses against Jane on or after September 20, 2006. For the reasons discussed, we reject Homero's ex post facto claim, but agree that Lazaro's conviction in count 4 must be reversed on ex post facto grounds.

Thus, Homero's $800 in fines ($500 on count 1 and $300 on count 2) were properly imposed pursuant to the current version of section 290.3 which became effective September 20, 2006. Lazaro's fines must be reduced from $800 (for two convictions) to $300 (for one conviction), given that his conviction in count 4 is reversed.

Jose's section 290.3 fines are another matter. Jose argues his section 290.3 fines must be reduced from $4,800 to $2,900—that is, to $200 for the first conviction and $300 for each of his nine subsequent convictions, based on the former version of section 290.3. But the People argue, and we agree, that Jose's $4,800 in section 290.3 fines must be reduced to $3,200, not to $2,900.

Although the jury was instructed it had to find, and substantial evidence shows, that Jose committed the section 288.7 offenses in counts 11 and 12 on or after September 20, 2006, Jose's offenses in counts 5 through 10, 13, and 14, were alleged to have occurred as early as May 22, 2004 (counts 5-10) and March 3, 2006 (counts 13-14). Thus, the court should have imposed a $300 fine on count 11 and a $500 fine on count 12 pursuant to the current version of section 290.3. Jose's eight other convictions in counts 5 through 10, 13, and 14 should have been treated as subsequent convictions under the former version of section 290.3. Thus, on Jose's eight remaining convictions, the court should have imposed fines of $300 each, or $2,400, for a total of $3,200 in section 290.3 fines on Jose's 10 convictions. We remand the matter with directions to the trial court to amend Jose's sentence accordingly. F. Lazaro's $300 Restitution Fine Was Properly Imposed

Lastly, Lazaro claims his $300 restitution fine (§ 1202.4, subd. (b)(1)), which the court referred to as "the minimum amount at $300," violates the state and federal ex post facto clauses because the minimum restitution fine at the time Lazaro committed counts 3 and 4, between 2006 and 2010, was $200, not $300, as it has been since January 1, 2014. (Stats. 2011, ch. 358, § 1, p. 3759.) Before January 1, 2012, $200 was the minimum restitution fine the court could impose pursuant to section 1202.4, subd. (b)(1).

The People claim Lazaro has forfeited any claim of error by failing to object to the $300 restitution fine at sentencing, and in any event the fine is within the range of the $200 to $10,000 in restitution fines the court was authorized to impose under the version of section 1202.4, subdivision (b)(1), in effect prior to 2012. We agree that Lazaro forfeited this claim of error by failing to object when the trial court imposed the $300 restitution fine. (People v. Avila (2009) 46 Cal.4th 680, 729.) G. Limited Remand for Franklin Hearing for Lazaro

In October 2017, the Governor signed Assembly Bill No. 1308, which amended section 3051 to extend the right to youth offender parole hearings to individuals who were age 25 or younger at the time they committed the controlling offense. (Stats. 2017, ch. 675, § 1.) Lazaro was born in December 1983, and the record indicates he was under age 26 when he had sexual intercourse with Jane as charged in count 3.

We therefore grant Lazaro's unopposed request for a limited remand to conduct Franklin proceedings. (People v. Franklin, supra, 63 Cal.4th at pp. 286-287.) That is, the court is to determine whether Lazaro had an adequate opportunity to present information relevant to his eventual youth offender parole hearing, and if not, to give him and the prosecution an opportunity to present evidence relevant to that eventual parole hearing. (People v. Costella, supra, 11 Cal.4th at pp. 9-10; §§ 3046, 3051, 4801, subd. (c).)

IV. DISPOSITION

The judgment against Homero is affirmed in its entirety. Lazaro's conviction in count 4 is reversed, and the matter is remanded to the trial court with directions to (1) strike Lazaro's 25-year-to-life sentence on count 4, (2) reduce Lazaro's section 290.3 fines from $800 to $300, and (3) reduce Jose's section 290.3 fines from $4,800 to $3,200.

The court is further directed to conduct Franklin proceedings for Lazaro—that is, to determine whether Lazaro had an adequate opportunity to present information relevant to his eventual youth offender parole hearing, and if not, to give him and the prosecution an opportunity to present evidence relevant to that eventual parole hearing. (People v. Franklin, supra, 63 Cal.4th at pp. 278, 283-284; People v. Costella, supra, 11 Cal.App.5th at pp. 9-10.) On remand, Homero and Jose may also seek to demonstrate their eligibility for Franklin proceedings.

The judgments against Lazaro and Jose are affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J. We concur: McKINSTER

Acting P. J. MILLER

J.