People v. Lamas

Full title: THE PEOPLE, Plaintiff and Respondent, v. DANIEL LAMAS, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: May 10, 2018

No. F073362 (Cal. Ct. App. May. 10, 2018)

Opinion

F073362

05-10-2018

THE PEOPLE, Plaintiff and Respondent, v. DANIEL LAMAS, Defendant and Appellant.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Louis M. Vasquez, Lewis A. Martinez, Kelly E. LeBel, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15901485)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Louis M. Vasquez, Lewis A. Martinez, Kelly E. LeBel, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Daniel Lamas (defendant) stands convicted, following a jury trial, of committing lewd acts against D., a child under age 14 (Pen. Code,¹ § 288, subd. (a); counts 1 & 2), sexual penetration of V., a child 10 years of age or younger (§ 288.7, subd. (b); counts 3 & 4), and of committing lewd acts against V., a child under age 14 (§ 288, subd. (a); counts 5 & 6). As to counts 1, 2, 5, and 6, the jury further found defendant committed violations of section 288, subdivision (a) against multiple victims. (§ 667.61, subds. (a), (e)(4).) Defendant was sentenced to a total of 65 years to life in prison and ordered to pay restitution, along with various fees, fines, and assessments.

1 All statutory references are to the Penal Code unless otherwise stated.

On appeal, we hold: (1) The trial court did not err by admitting evidence of uncharged sexual offenses or in instructing thereon; (2) The trial court did not give instructions that improperly emphasized the sufficiency of the complaining witnesses' testimony or that conflicted with respect to the age requirement of section 288.7, subdivision (b); (3) The trial court did not err by denying defendant's motion that the witnesses be ordered not to discuss the case with each other; (4) The trial court responded properly to a jury question; (5) Defendant is not entitled to reversal on a theory of cumulative prejudice; (6) Defendant is not entitled to remand for a new trial motion; (7) Any error with respect to the imposition of consecutive sentences was harmless; but (8) The sentence imposed on count 1 must be reduced from 25 years to life to 15 years to life in prison and the matter remanded for resentencing.

FACTS

I

PROSECUTION EVIDENCE

Carlos and Blanca have three daughters: D., V., and A.² Blanca also has an older daughter, I. During the approximately seven years Carlos and Blanca were in a relationship, the children all lived with them. When defendant and I. were in high school, they began dating. Ultimately, I. moved in with defendant and his family. D. was about four or five years old when that happened.

2 For privacy reasons, we sometimes use first names and initials. No disrespect is intended.

Eventually, Carlos and Blanca's relationship fell apart. When Carlos and Blanca broke up, defendant and I. sided with Blanca. This, together with a property dispute, caused friction between defendant and Carlos. Toward the end of the relationship, Blanca accused Carlos of domestic violence and of watching pornography in front of the girls, and there were heated arguments. Blanca and Carlos each called the police to the house numerous times.

The relationship ended when D. was around six or seven years old. At first, the girls lived with Blanca in Reedley. Carlos's visitation did not go smoothly, and the police were called several times. Blanca moved to Lompoc and took the girls with her, violating a court order, and so Carlos obtained custody and Blanca had visitation.

During the time defendant, I., and their young daughter were living with Blanca, I. gave birth to a baby boy who only lived a few days. About a month later, the couple and their daughter moved in with Carlos and the girls.³ Carlos had a six-bedroom house, and so defendant, I., and their daughter had the master bedroom, and each girl had her own room. Carlos usually slept on the couch or the floor in the living room. Every Friday when the girls were not with their mother, the group tried to have a movie night. They would rent movies and have popcorn, and spend the night watching movies on the big-screen television in the basement. They did this as regularly as they could, and defendant's brother joined them on several occasions. Sometimes, the girls would fall asleep in the basement.

3 Blanca and defendant did not get along. Defendant sued Blanca around the time the baby died, alleging Blanca refused to return his and I.'s property.

When D. was about 11 years old or a bit younger, Carlos noticed she was becoming withdrawn. This started around the time defendant and I. moved into a home next door to defendant's mother, after having lived in Carlos's home for around two years. The girls sometimes went to defendant and I.'s house after school or on Saturdays, if Carlos had to work. When school was not in session, the girls would sometimes have sleepovers there. They also stayed overnight on occasion when Carlos had to travel.⁴

4 D. did not want to go with defendant and I. even before the couple moved out of Carlos's house. If she did go (for example, to the movies or on an outing with the other children), she did so reluctantly.

The weekend of Sunday, February 22, 2015, was Blanca's weekend with the girls.⁵ When she dropped them off at Carlos's house that night, D. said she wanted to go to Lompoc with her mother. When Carlos refused because the girls had school the next day, D. started getting teary eyed and said she needed to go with her mother. Carlos asked her what was going on, but D. said she could not talk about it. V. told Carlos to let D. go, whereupon Carlos gave permission for D. to go with Blanca. D. said that after she was gone, Carlos could ask V. but if V. did not want to tell him, he should not push the issue with V., either.

5 By this time, although Carlos and Blanca were not friendly, the custody issues had settled down.

After D. left, Carlos asked V. what was going on. Reluctantly, as if she was ashamed, she told him something about D. Carlos then asked if anything was going on with V., and she told him that defendant had touched her. Carlos then telephoned Blanca to come back. When she did, he told her, and they took the girls to the police station.

Reedley Police Officer Alcorn took separate statements from D. and V. that evening. V. reported that she was sleeping, and woke to find defendant with his hands down her pants. At least one of his fingers penetrated her "down there." When Alcorn asked if it was where she went to the bathroom, she said yes. D. described a couple of incidents and said they took place within a 30-day period approximately a year earlier. D. and V. each said they had talked to each other about what happened, but Alcorn did not get into any detail about what was said or how long ago. The case was then turned over to Detective Horne. Carlos subsequently took the girls — including A. — to Fresno for a forensic interview.⁶

6 Although A. had not indicated to Carlos whether she had been inappropriately touched and V. said she had not been, as far as V. knew, Carlos was concerned about the possibility. After the forensic interview, Carlos was told law enforcement did not have any concerns about A.

D. was born in December 2001. She had known defendant since she was a baby. When she was little, she had a good relationship with defendant and I. She spent time with them, and they took care of her sometimes while her father was at work.

At trial, D. remembered the first time defendant made her feel uncomfortable. She did not remember how old she was or what grade she was in, but she thought she was attending Washington Elementary School. She thought she was there for fourth and fifth grades.

On this occasion, D. was at Carlos's house. She was unsure whether defendant and I. were living there at the time. It was movie night. A., V., defendant, I., and their daughter were there along with D. Some people were on the floor and some were on the couch. D. was on the floor next to defendant. Nobody was on the other side of D., but D. was "pretty sure" I. was on defendant's other side.

After the movie was over, some people went to their rooms, but most stayed downstairs. D., who was lying on blankets on the floor and had blankets on top of her, fell asleep. At some point, she woke up because she felt defendant's hand in her pants, underneath her underwear. She felt his skin on her skin "[d]own there," where girls "[p]ee." His hand was moving. D. tried to stop his hand by putting pressure on her arm or stomach, but was unsuccessful. She got up to leave and was starting to walk up the stairs, when he whispered her name and told her not to tell anybody. D. did not tell anyone at the time, because she did not want to. She felt bad and disappointed.

There was another time defendant made D. feel uncomfortable. D. did not remember how old she was, what grade she was in, or what school she attended, but defendant, I., and their daughter were living with D. at Carlos's house on this occasion. D. was in the master bedroom, where defendant and I. were living. Present at the house were defendant, I., their daughter, D., V., A., Carlos, defendant's brother, and the brother's daughter.

D. was asked to try to put defendant's niece to sleep, but D. ended up falling asleep herself on the bed. Defendant was not in the room at the time. She subsequently was awakened by his hand, which was inside her pants and underwear. His hand, which was moving, was touching her, skin to skin, in the same place as the other time. She did not know how long his hand was there. When she tried to move, he got up and left. D. sat up and cried, then walked through the kitchen and went into A.'s room. Defendant, I., and defendant's brother were in the kitchen. D. covered her face with her hair, because she did not want anybody to see her. She was crying and embarrassed. She told I. that she needed to tell her something. Once in A.'s room, D. told I. what had happened. D. was "pretty sure" I. did not say anything other than to go to bed. D. subsequently told V. and A. what happened and to be careful, because she did not want it to happen to them.

A third incident took place after the first two, and after defendant and I. had moved out of Carlos's house. D. was spending the night at defendant and I.'s home, and was sleeping in their daughter's room on a pull-out bed. She was about to fall asleep when defendant came in and lay next to her. He did not say anything. D. stayed awake, because she did not want him to touch her.

D. did not tell her parents, because she did not want them to think differently of defendant or to be mad at him. After these things happened, D. "was more away from" defendant, however. She did not want to participate in family gatherings and would tell her father that she did not want to go.

In February 2015, there came a weekend when D. and her sisters were with their mother. D. wanted to stay with Blanca, because she wanted to be out of Reedley for a bit. She needed a break. Blanca asked why D. did not talk to I. anymore. When D. started getting upset, Blanca said D. was scaring her, and asked if D. wanted to stay a while longer and tell Blanca when D.'s sisters were not around. D. said yes. When they arrived at Carlos's house and D. asked if she could go, Carlos asked why. D. was upset and walking in circles, because she did not want to tell him. It was like she could not breathe.

Carlos went outside to talk to Blanca. V., who was inside with D., told D. to calm down. D. was talking about how Blanca wanted to know what was happening, and D. did not want to tell her. V. said, "Don't worry, he did it to me, too." D. angrily asked why V. had not told her. V. apologized. Both were upset.

When Carlos returned, he gave D. permission to go with Blanca. As D. was leaving, she told Carlos, "If you really want to know what happened you can ask [V.], but don't make her tell you if she doesn't want to."

D. then left with Blanca. As they were driving away, Blanca received a telephone call from Carlos. Ultimately, they all ended up at the police station.

D. was later interviewed at another location. A video recording of this interview, which was conducted by Caroline Dower at the Family Healing Center, was played for the jury. During the course of the interview, D. related that when she told I. after the second time defendant touched her, I. asked how defendant touched D., then nodded and told D. to go to bed. D. did not think I. said anything to defendant, and just thought D. was dreaming or sleep walking. D. did that sometimes. In the morning, defendant and I. both acted like nothing happened. D. thought I. did not believe her and did nothing about it. That was why D. never really told anybody. D. thought defendant was drunk both times he touched her.

V. was born in December 2002. She had known defendant since she was born. Defendant and I. helped take care of her and her sisters when the girls were little. The girls went to their house a lot, and defendant and I. lived with the girls for a while.

At trial, V. recalled one morning in the summertime, when she was around 10 years old, being dropped off with her sisters at defendant and I.'s house while Carlos went to work. V. got a blanket, then lay down on a couch, since she had stayed up late and was tired. D. was on the other couch. I. was in her room, sleeping. V. and her sisters all fell asleep. V. woke to find defendant lying behind her. He put his hand inside her underwear and put his fingers inside her anus. V. did not know how long he did this, but he then removed his hand and laid it on her chest in her breast area. V. pretended to be asleep, because she was scared and did not know what to do. After a while, defendant got up and got ready for work. V. just lay there. She did not tell anyone until she told D. and her parents in February 2015.

The next day, Carlos again dropped the girls off at defendant and I.'s house before he went to work in the morning. V. lay down on the same couch, and the same thing happened. Defendant lay in back of her, then put his hand in her underwear and his finger in her anus. He then removed his finger and lay there with his hand on V.'s chest.

V. recalled this same thing happening at least three times that summer. In addition, sometimes when they were watching movies or television, defendant put his hand on V.'s thigh. This made her feel uncomfortable, but she never said anything, because she did not want to confront him. V. continued to go to defendant's house, because she wanted to see I. and I.'s daughter.

During the school year prior to February 2015, D. and V. were arguing, when D. started yelling and revealed that defendant had touched her. She did not give any details, other than to say she was 10. V. did not say anything in response.

In February 2015, the girls were with Blanca. V. could heard D. and Blanca talking and D. crying, but she could not tell what was being said. Blanca then drove them home, and D. asked if they could go back with Blanca to Lompoc. Carlos asked why, since D. had sounded fine on the telephone earlier but came home crying and upset. Carlos then went outside to ask Blanca what was going on. D. was in the living room, "freaking out" and repeatedly saying that I.'s daughter was not safe there. V. asked her what was going on, and D. said she had told their mother what was happening. V. said, "If you tell mom the whole story, tell her that that happened to me, too." This upset D. even more.

Carlos came back in, said Blanca had told him a little part of it, and asked V. if it had happened to her, too. When she said yes, he took her into her room and asked what had happened. She told him. He then went outside and talked to Blanca.⁷ Blanca and D. got in the car, then Carlos came back and grabbed his jacket. He told V., "When something happens like this, me and your mom can work together." Carlos then followed Blanca to the police station, while V. stayed home with A. Carlos then returned, dropped A. off at a friend's house, and took V. to the police station, where V. told what happened.

7 V. could not remember the exact order of things, because she and D. both were crying by this point.

A few days later, V. went to a place in Fresno and talked to a lady about what had happened. A video recording of this interview, which was conducted by Caroline Dower at the Family Healing Center, was played for the jury. During the course of the interview, V. related defendant touched her "in the wrong way" more than one but five or fewer times, but she did not remember the exact number, because it was a long time ago. He put his finger in her anus. He then put his hand on her chest. The same thing happened each time. Everything happened during one week in either the summer between third and fourth grades or the summer between fourth and fifth grades, when she was 10 years old, every single day V. was at defendant and I.'s house. After that, he only put his hand on her thigh. This scared her, however, because he would touch her leg before he put his finger inside her. V. never talked to I. about it, because D. had told V. that when it happened to D., D. told I. and I. either did not believe her or did not do anything about it.

A. was born in July 2004. At trial, she related that she had never had any problems with defendant. He never made her feel uncomfortable.⁸ When A. was about five years old, D. talked to her about defendant, and said that if anything happened with him, to call Carlos.

8 A. said essentially the same thing during her interview with Caroline Dower at the Family Healing Center, a video recording of which was played for the jury.

II

DEFENSE EVIDENCE

Defendant presented a series of witnesses who had seen him interact with D., V., and their own children, and had seen nothing inappropriate or that caused concern.

I. had known defendant about 12 years as of the time of trial. They met as sophomores in high school. According to Blanca, Carlos did not approve of them dating and did not like defendant. He and Blanca argued about the issue. I. moved in with defendant and his mother while still in high school.

Carlos and Blanca separated in 2006.⁹ Defendant and I. moved in with Blanca in 2008. They then moved in with defendant's brother in 2009. They moved back in with Blanca in 2010 or 2011, when Blanca was getting ready to move out of town. According to I., although Blanca initially approved of defendant, the relationship between the couple and Blanca severely deteriorated shortly after the death of defendant and I.'s son in September 2011. It escalated to the point the police were called, and, in 2012, defendant and I. had to sue Blanca in small claims court in order to obtain money damages for their belongings that she would not let them retrieve from her house. The couple lived with defendant's mother for a few months, then moved in with Carlos in approximately June of 2012. In April 2013, they moved into their own home.

9 According to Blanca, one of their issues concerned Carlos's collection of pornographic movies and magazines. In 2007, V. told Blanca that D. showed her genitals to V. Law enforcement was contacted. D. told Blanca that she had seen it on television when she was with Carlos. The police talked to Carlos, and that was the end of the incident. It occurred before the girls were in kindergarten.

I. denied D. ever told her that defendant touched her inappropriately. Had that happened, I. would have confronted defendant. D. did mention to I. that she felt uncomfortable when defendant picked her up, because he squeezed D. in the hip area. The circumstances were that defendant's brother, who was in a wheelchair, had brought his girlfriend and their daughter to visit. It was decided the brother would sleep in A.'s bed, because it was firmest. When I. discovered D. sleeping there, she had defendant carry D. to another bed. I. was present when defendant did so. Defendant kissed D. good night, then left the room. I. did not see anything unusual. A short time later, D. called I. out of the kitchen and said she had felt uncomfortable when defendant squeezed her. I. explained that D. was getting big and defendant needed to lift her, but told D. to let I. know if D. ever felt uncomfortable about anything. I. told D. that when I. was younger, she broke her foot, and Carlos would have to lift her up stairs. He would have his hand on her bottom, and that made I. feel uncomfortable. After that, D. never said anything that led I. to believe anything inappropriate was going on.

When defendant was arrested in this case, I. was shocked, because they had always had a great relationship with D., V., and A. The girls were like defendant and I.'s daughters. I. tried to think of any clue she might have missed, but there was "no possible way." As of the time of the allegations, however, D. and I. were not as close as they used to be. D. had withdrawn somewhat and, despite I. asking, did not say why.¹⁰ The only reason I. could think that the girls would make up the allegations was the issues defendant and I. had had with Blanca and Carlos.

10 I. was 12 years older than D. D. did not like to be told what to do. When defendant and I. were living with Carlos, the house was always a mess, and D. was not doing well in school and would not help around the house. D. would yell at everyone and not listen. She and I. got into arguments sometimes. Shortly before defendant and I. moved out of Carlos's house, one of the incidents turned into a physical altercation.

DISCUSSION

I

ISSUES CONCERNING UNCHARGED ACTS

As previously summarized, V. testified to the commission of identical touchings on more occasions than the People charged. Defendant now contends the trial court committed prejudicial error, as to all counts, by admitting propensity evidence that consisted of acts supported solely by the same evidence as, and undifferentiated from, the charged acts. He says the evidence had no independent probative value "because it depended entirely on [V.'s] credibility, so that the jury had to believe either that all of the acts took place or that none of them took place." He then says "the error is in the instruction, which allowed admission of the evidence for a particular purpose (propensity), not the overall admissibility of the evidence itself." We address both admission of the evidence and the instruction on the subject, and conclude the trial court did not err in either regard. A. Background

The People moved, in limine, to admit both charged and uncharged misconduct by defendant pursuant to Evidence Code section 1108. Defendant asserted the statute was unconstitutional and not designed to allow nonspecific conduct to bolster credibility, and that the proffered evidence was highly inflammatory and should be excluded under Evidence Code section 352. Defendant further argued the People were seeking to use conduct that was part of the case to establish a propensity on defendant's part, and that, under former CALCRIM No. 1191, jurors would be told that if the prosecutor believed the other conduct was proven by a preponderance of the evidence, they could use that evidence in deciding whether other matters were proven beyond a reasonable doubt. Defendant asserted this would confuse the jury and violate his due process right to a fair trial.

The trial court found former CALCRIM No. 1191 embodied the principle that, while jurors were permitted to infer guilt of uncharged acts proved by a preponderance of the evidence, a determination of guilt as to the charged offenses had to be based on proof beyond a reasonable doubt. With respect to Evidence Code section 352, the court found the proffered evidence to be relevant and probative, not unduly prejudicial, not inflammatory, not remote in time, and not time consuming. The court also found it did not confuse the issues. In what it termed a "careful exercise" of its discretion, it concluded the probative value outweighed the prejudicial effect. The court further found Evidence Code section 1108 to be constitutional.

D.'s and V.'s trial testimonies and their statements in the forensic interviews concerning uncharged acts are summarized ante. During the jury instruction conference, defense counsel objected to the giving of former CALCRIM No. 1191 on several grounds, including that it lessened the People's burden of proof. The People, who had requested the instruction, responded that, the trial court having permitted the introduction of Evidence Code section 1108 evidence, the instruction was necessary to direct the jury how to use that evidence. The prosecutor argued the instruction did not lower the burden of proof, as it specified the preponderance standard applied only to the uncharged conduct. The court ruled it would give former CALCRIM No. 1191, as the jury needed guidance concerning how to evaluate the evidence of uncharged sex offenses.

Jurors subsequently were instructed, in pertinent part, that a defendant in a criminal case is presumed to be innocent; this requires the People to prove a defendant guilty beyond a reasonable doubt; whenever the court instructed that the People must prove something, it meant they must prove it beyond a reasonable doubt unless the court specifically told the jury otherwise; and unless the evidence proved the defendant guilty beyond a reasonable doubt, he was entitled to an acquittal and must be found not guilty. Jurors were also told certain evidence was admitted during trial for a limited purpose, and they could consider such evidence only for that purpose and for no other. Pursuant to former CALCRIM No. 1191 (now CALCRIM No. 1191A), the court instructed:

"The People presented evidence that the defendant committed the crimes of lewd and lascivious acts that were not charged in this case. This crime is defined for you in these instructions. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is true by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit the charged offenses. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each charge beyond a reasonable doubt. Do not consider this evidence for any other purpose."

In her summation, the prosecutor told jurors they could use the evidence of the uncharged conduct to which V. testified, if they believed it was more likely than not that more than two acts occurred with V., to find defendant was disposed or more inclined to commit sexual offenses. The prosecutor acknowledged this might be confusing, "[b]ut if you find that it happened to V[.] more than two times and you believe that by a preponderance of the evidence, more likely that [sic] not, then you can use that evidence to find that he is inclined to commit sexual offenses. That he . . . is disposed to committing sexual offenses. And you can use that when evaluating whether I have proven the other charges beyond a reasonable doubt. [¶] I want to make it clear. You have to find everything that I've charged in that Information, the six counts, beyond a reasonable doubt. This only applies on the conduct that is outside of that information. Outside of what is charged in this case."

Defense counsel sought to cast doubt on D.'s and V.'s credibility. He argued that, according to Carlos, the girls were never dropped off at defendant's house for extended periods of time. If believed, this meant V. could not have been touched five days in a row. Counsel also argued that, according to D., the girls would go to the house, but defendant would already have left for work. Counsel asserted there was no opportunity for anything to have happened.

The prosecutor responded that defendant wanted jurors to believe Blanca and Carlos were such bad parents that the girls lied. She stated: "They either lied or they told the truth." B. Analysis

Generally speaking, Evidence Code section 1101 "prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity." (People v. Catlin (2001) 26 Cal.4th 81, 145.) Section 1108 of the Evidence Code is an express exception to that rule. (Evid. Code, § 1101, subd. (a).) Subdivision (a) of Evidence Code section 1108 provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."

Evidence Code section 1108 represents a determination by the Legislature "that, in a sex offense prosecution, the need for evidence of prior uncharged sexual misconduct is particularly critical given the 'serious and secretive nature of sex crimes and the often resulting credibility contest at trial' [citation] . . . . By removing the restriction on character evidence in [Evidence Code] section 1101, [Evidence Code] section 1108 now 'permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose' [citation], subject only to the prejudicial effect versus probative value weighing process required by [Evidence Code] section 352." (People v. Britt (2002) 104 Cal.App.4th 500, 505.) The statute thus "permits evidence of the defendant's commission of 'another sexual offense or offenses' to establish the defendant's propensity to commit sexual offenses" (People v. Medina (2003) 114 Cal.App.4th 897, 904), and it allows a jury to consider " ' "other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' [Citation.]" (People v. Falsetta (1999) 21 Cal.4th 903, 912.) Because it mandates the exercise of a trial court's discretion to exclude propensity evidence under Evidence Code section 352, Evidence Code section 1108 does not violate a defendant's right to due process. (Falsetta, supra, at pp. 917-918.)

Commission of a lewd and lascivious act on a child under the age of 14 constitutes a " '[s]exual offense.' " (Evid. Code, § 1108, subd. (d)(1)(A).) Accordingly, the uncharged acts in this case were admissible under subdivision (a) of Evidence Code section 1108, subject to the trial court's exercise of its discretion under section 352 of that code.

"A court has broad discretion to exclude, as substantially more prejudicial than probative, sexual offense evidence that meets the requirements for admission under Evidence Code section 1108, and its ruling in this regard is reviewed for abuse of discretion. [Citation.]" (People v. Merriman (2014) 60 Cal.4th 1, 58.) Discretion is abused when the trial court's ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226; see People v. Wesson (2006) 138 Cal.App.4th 959, 969.) "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.]" (People v. Cordova (2015) 62 Cal.4th 104, 132, italics added; accord, People v. Holford (2012) 203 Cal.App.4th 155, 167.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.) Thus, evidence should be excluded as unduly prejudicial " 'when it is of such nature as to inflame the emotions of the jury, motivating [jurors] to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" (People v. Escudero (2010) 183 Cal.App.4th 302, 310.)

"The weighing process under [Evidence Code] section 352 'depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.' [Citation.]" (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1105.) Nevertheless, the California Supreme Court has decreed that trial judges must consider factors such as the sex offense's "nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The amount of time involved in introducing and refuting the evidence is also an appropriate consideration. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)

With respect to probative value, "evidence of a 'prior sexual offense is indisputably relevant in a prosecution for another sexual offense.' [Citation.]" (People v. Branch, supra, 91 Cal.App.4th at p. 282.) Here, the uncharged offenses to which V. testified had at least some tendency in reason to show the charged acts were not isolated incidents, or mistakes or accidents.¹¹ They were also probative, as the trial court appears to have recognized, of the existence of a common scheme or plan.

11 " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)

Defendant argues the uncharged acts had no probative value, because the sole evidence of both the charged and uncharged offenses against V. was V.'s own testimony. (See People v. Stanley (1967) 67 Cal.2d 812, 817 [where basic issue in case is veracity of complaining witness and defendant concerning commission of charged acts, trier of fact is not aided by evidence of other offenses where said evidence is limited to uncorroborated testimony of complaining witness]; but see People v. Ewoldt (1994) 7 Cal.4th 380, 407-408 [Stanley's observation was based on incorrect premise that sole purpose in admitting evidence of uncharged misconduct is to corroborate testimony of complaining witness; such evidence properly may be admitted to prove any fact material to prosecution's case].)

People v. Ennis (2010) 190 Cal.App.4th 721 is on point. In that case, Ennis was charged with, inter alia, sexual offenses against C. that were committed in California. Pursuant to Evidence Code section 1108, the trial court permitted the jury to hear evidence of uncharged sexual offenses he committed against C. in Arizona. (Ennis, supra, at pp. 726, 728, 732.) On appeal, Ennis claimed the uncharged acts were unduly prejudicial, primarily because the evidence had almost no probative value. (Id. at p. 733.) The appellate court rejected this contention, stating:

"Admittedly, the probative value seems slight. While evidence the defendant has committed other, similar, crimes is always probative due to its suggestion he has a propensity toward that type of crime, when such

evidence comes in a child molestation case, from the same witnesses who supplied the evidence of the charged crimes, and amounts to evidence that the defendant molested the child even more times than he was charged with, it wouldn't seem to advance the ball in any meaningful way. None of the evidence about the alleged Arizona crimes fills in any missing pieces about what happened in California; nor, since the evidence comes from the same source as the evidence about the California crimes, does it corroborate that California evidence in any significant way.

"Nonetheless, we conclude the contention that the prejudicial impact of this evidence substantially outweighed the probative effect is unpersuasive. Stated simply, we reject the assertion the challenged evidence about the Arizona crimes had any significant 'prejudicial' effect, as that word is used in Evidence Code section 352. [¶] . . . [¶]

"In this case, we are confident that whatever 'emotional bias' the Arizona evidence might have tended to invoke against Ennis was nugatory, given the substantially identical evidence offered regarding the California crimes which were actually at issue. Nothing about the uncharged Arizona crimes made Ennis look significantly worse, or made his alleged conduct in California appear significantly more egregious, than it already did. . . .

"Further, nothing about the Arizona evidence made the California evidence look substantially more credible than it would have otherwise. If the jury was not inclined to believe that C. had told the police about what happened to her in California . . . , and what [another witness] testified to at trial about what happened . . . in California, it's difficult to imagine how hearing additional evidence from the same sources, about similar crimes committed against C. in Arizona, would change anything. . . .

"In the circumstances of this case, we reject the contention the prejudicial effect of allowing the jury to hear of Ennis'[s] uncharged acts of sexual molestation in Arizona substantially outweighed the probative value of that evidence. The court did not err in admitting it." (People v. Ennis, supra, 190 Cal.App.4th at pp. 733-735.)

We reach the same conclusion here. The trial court was not required to find the presumption in favor of admissibility was overcome. (See People v. Loy (2011) 52 Cal.4th 46, 62.) The uncharged acts were no more inflammatory than the charged offenses, the evidence was presented quickly and without irrelevant detail, and the uncharged acts were not remote in time. (See ibid.; People v. Wilson (2008) 44 Cal.4th 758, 797-798.) Although defendant was never punished for the uncharged acts, a fact that can heighten prejudicial effect (see People v. Ewoldt, supra, 7 Cal.4th at p. 405), this did not render the evidence substantially more prejudicial than probative. Significantly, the evidence "did not encourage the jury to prejudge defendant's case based upon extraneous or irrelevant considerations. [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 853.)

The trial court acted well within its broad discretion in admitting the challenged evidence. Since the evidence was admitted for a permissible purpose and its exclusion was not compelled by Evidence Code section 352, admission did not violate defendant's due process rights. (People v. Holford, supra, 203 Cal.App.4th at p. 180; see People v. Rogers (2013) 57 Cal.4th 296, 332; People v. Foster (2010) 50 Cal.4th 1301, 1335.)

Nor did the trial court err by giving former CALCRIM No. 1191. The court properly determined the jury needed guidance with respect to evaluating the uncharged misconduct. Defendant argues, however, that the instruction lowered the prosecution's burden of proof by allowing the jury to (1) find the uncharged acts by a preponderance of the evidence, (2) treat those acts as an independent factor (propensity), and then (3) treat such propensity as corroboration of V.'s account to satisfy themselves beyond a reasonable doubt that V.'s account was true. We disagree.

"The Due Process Clause requires the government to prove a criminal defendant's guilt beyond a reasonable doubt, and trial courts must avoid [instructing in such a way] as to lead the jury to convict on a lesser showing than due process requires." (Victor v. Nebraska (1994) 511 U.S. 1, 22.) "The constitutional question . . . is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [beyond-a-reasonable-doubt] standard." (Id. at p. 6.) Thus, " '[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citations.]' [Citation.]" (People v. Solomon (2010) 49 Cal.4th 792, 822; accord, Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Jablonski (2006) 37 Cal.4th 774, 831.) Moreover, in assessing whether jury instructions were erroneous, a reviewing court must " ' " 'assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" ' [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)

Former CALCRIM No. 1191 is constitutional and correctly states the law. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [addressing CALJIC No. 2.50.01, former CALCRIM No. 1191's counterpart]; People v. Johnson (2008) 164 Cal.App.4th 731, 739-740; see People v. Villatoro (2012) 54 Cal.4th 1152, 1160; People v. Tewksbury (1976) 15 Cal.3d 953, 964-965 & fn. 12; People v. Van Winkle (1999) 75 Cal.App.4th 133, 143-144.) As did the California Supreme Court in Reliford, "[w]e . . . reject the . . . assertion that the instruction, even if correct, is too 'complicated' for jurors to apply. This is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.] As we do in each of those circumstances, we will presume here that jurors can grasp their duty — as stated in the instructions — to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Reliford, supra, 29 Cal.4th at p. 1016.)

The foregoing is particularly true in light of the prosecutor's clarification of the People's burdens of proof and the fact there was no way to distinguish between the charged and the uncharged acts. We reject any notion jurors were more likely to find V. credible the more incidents she described. We also reject any notion jurors might find V. was probably truthful concerning the uncharged acts and therefore, because defendant had a propensity to molest, further find the charged acts were established beyond a reasonable doubt. On the evidence presented, jurors had to believe either all the acts testified to by V. occurred or none of them did.

Defendant cites us to the recent opinions in People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz), People v. Nicolas (2017) 8 Cal.App.5th 1165 (Nicolas), and People v. Gonzales (2017) 16 Cal.App.5th 494 (Gonzales). These cases do not assist him.

In Cruz, supra, 2 Cal.App.5th 1178, this court found a lowered burden of proof, resulting in structural error, where jurors were permitted to find charged offenses true by a preponderance of the evidence and then use those findings to infer the defendant had a propensity to commit other charged sex offenses. (Id. at pp. 1180, 1184.) We reasoned: "In effect, the instruction given here told the jury it should first consider whether the offenses charged in counts 1, 2, and 3 had been established by a preponderance of the evidence, while holding its ultimate decision on the same offenses in suspension. Then the jury was required to decide whether the preponderance finding showed a propensity, and whether this propensity, in combination with the other evidence, proved those offenses a second time, this time beyond a reasonable doubt. [¶] . . . [¶] . . . A robot or a computer program could be imagined capable of finding charged offenses true by a preponderance of the evidence, and then finding that this meant the defendant had a propensity to commit such offenses, while still saving for later a decision about whether, in light of all the evidence, the same offenses have been proven beyond a reasonable doubt. A very fastidious lawyer or judge might even be able to do it. But it is not reasonable to expect it of lay jurors. We believe that, for practical purposes, the instruction lowered the standard of proof for the determination of guilt." (Id. at pp. 1185-1186.)

In the present case, unlike Cruz, jurors were permitted to find only uncharged acts by a preponderance of the evidence. As given, former CALCRIM No. 1191 so stated, and counsels' summations contained no suggestion charged acts could be so used. Defendant says this is not a meaningful difference, because the evidence of the uncharged acts that was presented in his case was identical to the evidence of the charged offenses. He observes: "The jury had no evidentiary or logical basis to distinguish them."

It is precisely for this reason we reject the notion jurors might have found the uncharged acts true by a preponderance of the evidence, then used propensity as a circumstance supporting guilt beyond a reasonable doubt of the charged offenses, thereby lowering the prosecution's burden of proof as to the charged offenses. Considering the evidence and instructions as a whole in this case, it is simply unreasonable to believe any juror reasoned, I don't know if V. is credible, but I think defendant probably committed the uncharged acts, so he has a propensity for molesting children, and so he definitely committed the charged acts.

In Nicolas, supra, 8 Cal.App.5th 1165, the defendant was on her phone and texting while driving on the freeway. She crashed into the rear of the victim's car, which was stalled in a traffic jam, at approximately 80 miles per hour, killing the victim. She was convicted of vehicular manslaughter with gross negligence. (Id. at p. 1169.) The trial court instructed jurors they could use the uncharged behavior of cell phone use, pursuant to Evidence Code section 1101, subdivision (b), to show intent and knowledge and to determine whether the defendant's actions were not the result of mistake or accident, if jurors found the People had proved the uncharged acts by a preponderance of the evidence. (Id. at pp. 1177-1178.) The appellate court found clear error, as there were, in fact, no uncharged acts admitted into evidence. (Id. at p. 1178.) It concluded the error was reversible per se, stating: "We are faced with the same type of instructional error that the appellate court dealt with in Cruz. . . . The instruction told the jury that the evidence concerning defendant's phone use immediately prior to the collision could be proven under a preponderance of the evidence standard. This had the effect of lowering the prosecution's burden of proof because this was the same evidence that the prosecution was using to prove gross negligence. Even though the jury was also told (through other jury instructions and argument) that it needed to find gross negligence (and ultimately defendant's guilt) under a reasonable doubt standard, the two competing standards of proof were addressing the same evidence. The court's instructional error not only presented the jury 'with a nearly impossible task,' but as a reviewing court, we have absolutely no way of knowing which of the two competing standards of proof the jury may have applied to the same evidence." (Id. at pp. 1181-1182.)

In the present case, the uncharged acts were not, as defendant asserts, part of the same course of conduct as the charged acts or an indivisible part of the offense itself. "A violation of section 288, subdivision (a) is not a continuous course of conduct offense, even when it is based on generic testimony." (People v. Anderson (2012) 208 Cal.App.4th 851, 891.) That the jury in defendant's case had to rely on evidence from a single source for both the charged and uncharged acts, does not make Nicolas persuasive under the circumstances before us. The jury here did not rely on "the same evidence" as happened in Nicolas. V. testified to separate acts occurring on different days. Although she was the sole source of evidence concerning both the charged and uncharged acts, and there was no means to distinguish between those acts in terms of what took place or V.'s veracity, the uncharged acts were not part of the charged offenses in the way they were in Nicolas.

In Gonzales, supra, 16 Cal.App.5th 494, the prosecution introduced evidence, through the victim's own testimony, of uncharged sex offenses defendant committed against the victim of the charged sex offenses. (Id. at p. 496.) On appeal, the defendant claimed that giving former CALCRIM No. 1191 improperly allowed the victim to corroborate her own testimony. (Gonzales, supra, at p. 500.) Two justices rejected the claim, concluding that since the evidence was admissible for the purposes stated in CALCRIM No. 1191, CALCRIM No. 1191 correctly instructed the jury. (Gonzales, supra, at p. 501.) They noted that Evidence Code section 1108 is not limited to the testimony of third parties, and found nothing irrational about a victim supporting his or her own testimony with testimony of uncharged sexual offenses. Although agreeing such testimony is not as probative as similar testimony from a third party, they found it probative nevertheless. (Gonzales, supra, at p. 502.) They also rejected the claim the instruction likely resulted in the jury misapplying the burden of proof for the charged offenses, noting CALCRIM No. 1191 tells jurors the uncharged offenses are only one factor to consider, they are not sufficient by themselves to prove the defendant is guilty of the charged offenses, and the People must still prove the charged offenses beyond a reasonable doubt. (Gonzales, supra, at p. 502.)

The concurring justice found the instruction to have been erroneous and to have required an "exercise in 'mental gymnastics' " from the jurors: "[The victim's] credibility was the core of the proof establishing [the defendant's] guilt. The jury was instructed, however, that it only had to be satisfied by a preponderance of the evidence of [the victim's] veracity to prove the commission of the uncharged offenses in order to prove the charged offenses, even if not satisfied beyond a reasonable doubt of the commission of the uncharged offenses." (Gonzales, supra, 16 Cal.App.5th at p. 506 (conc. opn. of Perren, J.).) The error in giving the instruction was harmless, however, because the instruction did not lower the standard of proof for the determination of guilt. It made clear that the charged offenses had to be proven beyond a reasonable doubt, the evidence supporting the charged offenses was substantial, and the victim's testimony "bore hallmarks of credibility" and was corroborated by her mother and another witness. (Id. at p. 507 (conc. opn. of Perren, J.).)

Were we to agree with the foregoing analysis, we would similarly find defendant was not prejudiced by the giving of former CALCRIM No. 1191. The instructions and argument of counsel made clear the charged offenses had to be proven beyond a reasonable doubt. Moreover, it bears repeating: V. either was credible as to all acts to which she testified, or she was not credible as to any. Jurors were told to consider all the instructions together. Under the circumstances of this case, when former CALCRIM No. 1191 is considered with the court's other instructions, it simply is unreasonable to conclude any juror found V. probably credible with respect to the uncharged acts and so found defendant had a propensity to molest children, and as a result found V. definitely credible with respect to the charged acts.

II

OTHER ALLEGED INSTRUCTIONAL ERRORS

A. Emphasizing Sufficiency of Complaining Witnesses' Testimony

During the course of its general instructions to the jury, the trial court gave CALCRIM No. 301, which stated: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." Subsequently, at the conclusion of its instructions on the elements of the charged offenses, the trial court gave CALCRIM No. 1190, to wit: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone."

Defendant now says the trial court prejudicially erred, as to all counts, by giving CALCRIM No. 1190 after it had already given CALCRIM No. 301. He says CALCRIM No. 1190 was argumentative and repetitious, and, because it emphasized the sufficiency of the complaining witnesses' testimony, it "tilted the case in favor of the People so significantly" that it violated his federal constitutional rights to an impartial jury and due process.

Insofar as the record shows, defendant did not object to the giving of either instruction. The Attorney General argues defendant's claim was forfeited as a result. Defendant disagrees. (Compare People v. Lee (2011) 51 Cal.4th 620, 638 with People v. Taylor (2010) 48 Cal.4th 574, 630 & fn. 13.) We believe the Attorney General has the better argument, since both instructions correctly state the law. (See Evid. Code, § 411.) We need not decide, however, since defendant's claim fails on the merits.

"An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law. [Citation.] 'A jury instruction is [also] argumentative when it is " 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' [Citations.]" ' [Citation.]" (People v. Campos (2007) 156 Cal.App.4th 1228, 1244; accord, People v. Santana (2013) 56 Cal.4th 999, 1012.)

We do not find CALCRIM No. 1190 to be argumentative, even when CALCRIM No. 301 is also given. Moreover, we conclude People v. Gammage (1992) 2 Cal.4th 693 (Gammage) is dispositive.

In Gammage, the jury was instructed pursuant to CALJIC No. 2.27, CALCRIM No. 301's counterpart, as follows: " 'Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.' [Citations.]" (Gammage, supra, 2 Cal.4th at p. 696, italics & fn. omitted.) Jurors were also instructed pursuant to CALJIC No. 10.60, CALCRIM No. 1190's counterpart, as follows: " 'It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.' [Citation.]" (Gammage, supra, at pp. 696-697, fn. omitted.)

On appeal, the California Supreme Court found it "not disputed" that CALJIC Nos. 2.27 and 10.60 both correctly stated the law. (Gammage, supra, 2 Cal.4th at p. 700.) The court held it was proper for a trial court to give both in cases involving sex offenses (id. at p. 702), explaining:

"Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other

instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes.

"Because of this difference in focus of the instructions, we disagree with defendant . . . that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. . . . 'There was no singling out of the testimony of the prosecuting witness with a view of giving it undue prominence before the jury.' [Citation.] Nor do the instructions 'dilute[] the "beyond a reasonable doubt" standard.' [Citation.] The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Gammage, supra, at pp. 700-701.)

Defendant argues Gammage has no applicability to CALCRIM No. 1190, because that instruction — unlike CALJIC No. 10.60 — "says nothing about corroboration, and does not even use the word." Saying that conviction of a sexual assault crime may be based on the testimony of a complaining witness alone, as does CALCRIM No. 1190, is simply another way of saying the complaining witness's testimony need not be corroborated. Accordingly, we disagree with defendant and find Gammage to be controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)¹² B. Conflicting Instructions on Age Requirement for Counts 3 and 4

12 We note jurors were instructed, both at the outset of voir dire and again during the giving of trial instructions, not to take anything the court said or did as an indication of what the court thought about the facts, the witnesses, or what the verdict should be. Jurors were also told that if the court repeated any instruction or idea, jurors should not conclude it was more important than any other instruction or idea; and not to assume the court was suggesting anything about the facts just because it gave a particular instruction. Under the circumstances of this case, these admonitions were more than adequate to overcome any possible intimation the court was emphasizing the credibility of the complaining witnesses. (Cf. People v. Sturm (2006) 37 Cal.4th 1218, 1243-1244 [admonition not to infer bias on part of court based on comments court made during trial insufficient to cure error where judicial misconduct occurred throughout penalty phase]; Carlston v. Shenson (1941) 47 Cal.App.2d 52, 57-58, 59-60 [admonition insufficient to cure error where trial court commented on evidence in way that made clear inference it drew].)

Counts 3 and 4 each alleged defendant committed oral copulation or sexual penetration with V., a child 10 years of age or younger, in violation of section 288.7, subdivision (b), on or about December 23, 2011, through December 22, 2013. Prior to instructing on the requirement of proof of the union or joint operation of act and wrongful intent, the court gave CALCRIM No. 207, which set out the time frames alleged by the People with respect to the charged offenses and then stated: "The People are not required to prove that the crimes took place exactly on those dates, but only that it happened reasonably close to those dates."

The court then turned to the elements of the various charged offenses. After instructing on counts 1, 2, 5, and 6, it gave CALCRIM No. 1128. That instruction stated, in pertinent part: "The defendant is charged in Counts Three and Four with engaging in sexual penetration with a child ten years of age or younger, in violation of Penal Code section 288.7, subdivision (b). To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant engaged in an act of sexual penetration with [V.]; two, when the defendant did so, [V.] was ten years of age or younger; and, three, at the time of the act, the defendant was at least 18 years old. Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun."

Defendant now contends the trial court committed prejudicial error as to counts 3 and 4 by giving conflicting instructions on the firmness of the cutoff date with respect to the child's age requirement contained in section 288.7, subdivision (b). He says that since the dates alleged for counts 3 and 4 were intended to encompass the full range of two years up to, but not including, V.'s 11th birthday, the instructions permitted jurors to find defendant guilty even if they harbored a reasonable doubt whether V. had turned 11, as long as they found the offenses were committed " 'reasonably close' " to the two-year range specified in CALCRIM No. 207.

The record does not show defendant objected to either instruction on the grounds he now raises. The Attorney General says that if defendant found CALCRIM Nos. 207 and 1128 conflicting, he could have requested clarification. Having failed to do so, his claim should be deemed forfeited.

Clearly, defendant could have asked for clarification. His claim, however, is that the asserted error impacted an element of the offense charged in counts 3 and 4. Instructions regarding the elements of the crime affect a defendant's substantial rights, and so no objection is required to preserve a claim for appellate review. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th 469, 503.) While we find no forfeiture, we conclude defendant's claim must be rejected on the merits.

"[S]ection 288.7 makes it a felony, punishable by an indeterminate life term, for any adult to engage in specified sexual conduct 'with a child who is 10 years of age or younger.' . . . [T]he statutory phrase '10 years of age or younger' includes children younger than 10 years of age and children who have reached their 10th birthday but who have not yet reached their 11th birthday." (People v. Cornett (2012) 53 Cal.4th 1261, 1263-1264, fn. omitted.)

An essential element of the offense proscribed by section 288.7 is that the child must have been 10 years of age or younger (see People v. Levoy (1920) 49 Cal.App. 770, 772), and the People have the burden of proving that fact beyond a reasonable doubt (People v. Valenti (2016) 243 Cal.App.4th 1140, 1164 (Valenti).) As given, CALCRIM No. 1128 correctly stated this element, and defendant does not now contend otherwise. Standing alone, CALCRIM No. 207, as modified by the trial court, also correctly stated the law. (§ 955; People v. Richardson (2008) 43 Cal.4th 959, 1027.) Thus, we are not confronted with a situation in which the jury was given plainly conflicting instructions, one of which was erroneous on its face. (Cf. People v. Ngo (2014) 225 Cal.App.4th 126, 153.) At most, the instructions raised a potential ambiguity or technical inconsistency. (See People v. Hardy (1992) 2 Cal.4th 86, 186 [instructions that testimony of one witness was sufficient for proof of any fact and that accomplice testimony required corroboration raised "technical inconsistency"].)

" 'If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.' [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1202, citing Estelle v. McGuire, supra, 502 U.S. at p. 72 & fn. 4.)¹³ " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citation.] 'Moreover, any theoretical possibility of confusion [may be] diminished by the parties' closing arguments . . . .' [Citation.] ' " 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.' " ' [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)

13 The California Supreme Court has applied the same standard to conflicting instructions. (People v. Rogers, supra, 39 Cal.4th at p. 873.)

We find no reasonable likelihood jurors misapplied the instructions in the way defendant now contends. "Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might." (Boyde v. California (1990) 494 U.S. 370, 380-381.) A reasonable juror — which we presume defendant's trial jurors were — would recognize that CALCRIM No. 207 set out the general rule that the People were not required to prove the crimes took place exactly on the dates alleged, while CALCRIM No. 1128 stated an exception, in that, for counts 3 and 4, the People had to prove V. was 10 years of age or younger, whatever the date on which the offenses occurred. (See People v. Hardy, supra, 2 Cal.4th at pp. 186-187.) This is particularly true in light of the prosecutor's argument concerning the fact section 288.7, subdivision (b) required that the victim was 10 years of age or younger, and the evidence showed V. was 10 years old at the time of the offenses.

III

OTHER TRIAL ISSUES

A. Denial of Motion that Witnesses Not Discuss the Case

Defendant moved, in limine, for an order excluding all witnesses from the courtroom unless testifying, and precluding them from conversing with each other until they all were examined. As authority, he cited section 867 and Evidence Code section 777. The court granted the motion to exclude pursuant to Evidence Code section 777, but declined to go beyond that unless persuaded otherwise. The court noted that section 867 applied to preliminary hearings, not trials. Defense counsel expressed concern witnesses might alert other witnesses to the nature of the questioning, which could result in witnesses not giving an independent recollection of events. He argued the court had discretion to make such a ruling, and failure to do so violated defendant's ability to receive a fair trial. The prosecutor disagreed and asserted any bias of witnesses could be addressed during cross-examination. The trial court agreed with the prosecutor. It subsequently noted that its in limine rulings could, except as otherwise specified in its rulings, be revisited and reconsidered by the court as the case unfolded.

Defendant now says the trial court's refusal to order witnesses not to discuss the case with each other constituted prejudicial error as to all counts. He says the trial court abused its discretion, because it gave insufficient weight to the fact the case turned almost entirely on the credibility of child witnesses, young children are particularly suggestible, and cross-examination would not necessarily show a child witness's memory had been tainted by discussing the case. We find no abuse of discretion.

Section 867 makes orders excluding witnesses and preventing them from conversing with each other until they are all examined, matters of right during a preliminary hearing. (People v. Young (1985) 175 Cal.App.3d 537, 541.)¹⁴ Such orders are recognized as a means of " 'discouraging and exposing fabrication, inaccuracy, and collusion.' [Citations.]" (People v. Young, supra, at p. 541.)

14 Section 867 provides in part: "While a witness is under examination, the magistrate shall, upon motion of either party, exclude all potential and actual witness[es] who have not been examined. [¶] The magistrate shall also order the witnesses not to converse with each other until they are all examined."

"Given that a primary object of preliminary examinations is to ' "weed out groundless or unsupported charges of grave offenses, . . ." ' [citations], witness separation is of more crucial importance at the preliminary examination than at trial. [Citation.] Thus at trial, the court retains discretion to decide whether prior to his testimony a witness should be precluded from hearing the testimony of another witness. [Citations.]" (People v. Young, supra, 175 Cal.App.3d at pp. 541-542; see Evid. Code, § 777.)¹⁵ The trial court's power in this regard is "broad" (Geders v. United States (1976) 425 U.S. 80, 87), and includes the power to instruct the witnesses not to talk with other witnesses (People v. Hutchings (1908) 8 Cal.App. 550, 555; see § 1044).

15 Evidence Code section 777 provides that, subject to exceptions not applicable here, "the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses."

A trial court's rulings on such motions are reviewed for abuse of discretion. (People v. Griffin (2004) 33 Cal.4th 536, 574, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.)

We find no abuse of discretion here. Defendant asserts the trial court gave insufficient weight to the fact the case turned largely on the credibility of child witnesses, the memories and suggestibility of whom tend to be more problematical than where adults are concerned. In reality, however, the record is silent concerning what weight the trial court gave to this and other pertinent considerations. "[A]buse of discretion is not presumed from a silent record, but must be clearly shown by [defendant]." (People v. Preyer (1985) 164 Cal.App.3d 568, 574; see People v. Stowell (2003) 31 Cal.4th 1107, 1114.)

Defendant points to the fact that after his motion was denied, the prosecutor and a district attorney's investigator met with all three girls together for a courtroom rehearsal, and the girls may have been questioned on substantive matters. "Defendant may not attempt to make up for what was lacking in his motion by relying on matters subsequent to its denial. A reviewing court 'focuses on the ruling itself and the record on which it was made. It does not look to subsequent matters . . . .' [Citation.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) In any event, what took place at the courtroom rehearsal was thoroughly explored before the jury.

Defendant also points to the fact Horne's testimony at the preliminary hearing suggested V. admitted talking to D. about the details of the case during the period in which the forensic interviews were conducted. Defendant argues the trial court was aware of this, having stated it had read the preliminary hearing transcript, and so the court must have known that if the girls were talking about the details of the case a few months earlier, they were probably doing the same at various points around the time of trial. This does not establish the trial court's ruling constituted an abuse of discretion, however. (See People v. Duckett (1962) 210 Cal.App.2d 867, 871.) As the trial court expected, the girls were questioned by counsel about whether they discussed their trial testimony, what took place, or making up a story. Alcorn was also questioned about whether D. and V. had spoken to each other about the incidents.

In short, defendant has failed to establish an abuse of discretion. B. The Trial Court's Response to the Deliberating Jury's Question

At multiple times during trial, counsel referred to the interviews of D., V., and A., that were conducted at the Family Healing Center, as the "MDIC" interviews. The acronym was never defined for the jury, nor was the interview process explained beyond that these were forensic interviews.

During deliberations, the jury sent out a written request that read: "What exactly is MDIC and what is its relationship with the District Attorney's office. What are the qualifications of the person performing the interview? Were the questions asked in the MDIC interview provided by law enforcement." The court and counsel discussed the matter in chambers. Pursuant to that discussion, the court proposed to send a written response to the jury that would state: "Both parties stipulated to the admissibility of the recorded MDIC interviews and, therefore, the answers to your questions are not available." When the court asked if defense counsel wished to be heard regarding the response, defense counsel replied: "Your Honor, we agree with that response." The prosecutor stated she did not wish to be heard. Accordingly, the court's written response was given to the jury.

Defendant now contends the trial court committed prejudicial error, as to all counts, by declining to answer the jury's question. We conclude the issue was not preserved for appeal, and defendant's claim fails on the merits in any event.¹⁶

16 In light of our conclusion on the merits, we do not address defendant's alternative claim that defense counsel's performance was constitutionally deficient if counsel's conduct failed to preserve the issue for appellate review. Were we to reach the claim, we would reject it, as the record on appeal sheds no light on why counsel acted as he did, he was not asked for an explanation, and we cannot say there could have been no satisfactory reason. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

"After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, . . . the information required must be given . . . ." (§ 1138.) This statute "imposes a 'mandatory' duty to clear up any instructional confusion expressed by the jury. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)

"Defendant forfeited his appellate challenge by expressly agreeing to the court's response." (People v. Boyce (2014) 59 Cal.4th 672, 699; accord, e.g., People v. Jennings (2010) 50 Cal.4th 616, 683; People v. Rogers, supra, 39 Cal.4th at p. 877; People v. Benavides (2005) 35 Cal.4th 69, 114; People v. Hughes (2002) 27 Cal.4th 287, 402.) Cases cited by defendant, which deal with forfeiture where the issue is one involving a trial court's fundamental instructional duty, are not on point. (E.g., People v. Townsel (2016) 63 Cal.4th 25, 59-60; People v. Miller (2008) 164 Cal.App.4th 653, 661-662 & fn. 4; People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20; see § 1259.)

In any event, the claim fails. Section 1138 refers to disagreements among jurors as to testimony. There was no testimony here concerning the matters raised in the jury's communication, which was the whole point of the trial court's response.

Moreover, the statute refers to points of law arising in the case, not questions concerning facts. (People v. Williams (2015) 61 Cal.4th 1244, 1267; People v. Payton (1992) 3 Cal.4th 1050, 1068.) "[T]he trial court may instruct the jury only on the law." (People v. Santos (1990) 222 Cal.App.3d 723, 746.) The questions asked by the jury here were, beyond dispute, factual. (Compare, e.g., People v. Ross (2007) 155 Cal.App.4th 1033, 1047 [meaning of " 'mutual combat' " in relation to self-defense was " 'point of law arising in the case' " within meaning of § 1138] with People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400 [MDIC "is a facility specially designed and staffed for interviewing children suspected of being victims of abuse"].)

Defendant says the trial court could have reopened the case for the limited purpose of answering the jury's questions. The court may have had discretion to do so had such a request been made. (People v. Homick (2012) 55 Cal.4th 816, 881; People v. Cuccia (2002) 97 Cal.App.4th 785, 792; see §§ 1093, 1094.) Insofar as the record shows, it was not. Defendant cites no case in which a trial court has ordered evidence reopened on its own motion. Assuming the trial court had such authority, it did not abuse its discretion by failing to exercise it, in light of the factors to be considered, and particularly where defense counsel apparently did not desire that the court do so.¹⁷

17 "In determining whether an abuse of discretion occurred, the reviewing court considers four factors: ' "(1) the stage the proceedings had reached when the motion [to reopen] was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence." ' [Citation.]" (People v. Homick, supra, 55 Cal.4th at p. 881.)

IV

CUMULATIVE PREJUDICE

Defendant contends the cumulative effect of the claimed trial errors was prejudicial.¹⁸ There was, however, no error to accumulate. (See People v. Johnson (2015) 60 Cal.4th 966, 996.)

18 Defendant's compliance with California Rules of Court, rule 8.204(a)(1)(B), is questionable. That rule requires that briefs state each point under a separate heading or subheading. Although defendant includes a subheading for cumulative prejudice at the conclusion of one of his issues, cumulative prejudice is not mentioned in his table of contents.

V

NEW TRIAL MOTION

Defendant says he is entitled to a remand for a new trial motion. We disagree. A. Background

On November 12, 2015, the trial court granted a continuance of sentencing, to January 22, 2016, to allow time for defendant to file a motion for a new trial. On the latter date, however, defense counsel stated that after doing follow-ups and attempting to get copies of transcripts from one of the reporters, he was not intending to file a motion for new trial, and defendant could address any issues on appeal. The matter was then put over to February 26, 2016, for sentencing.

At sentencing, defense counsel noted the evidence at trial showed D., V., and A. were dealing with problems that arose from Carlos and Blanca's relationship before defendant became a part of the girls' lives. Counsel argued that defendant maintained his innocence, and there was no evidence, other than D.'s and V.'s complaints, that anything untoward occurred. Counsel stated that, in his experience in dealing with such cases, what the girls claimed happened and when, was not consistent with the actions of someone who was a child molester. Counsel acknowledged the jury had spoken, but asserted a sentence of 130 years to life — the length recommended in the probation officer's report — was inappropriate and unnecessary.

The court observed that a number of people had submitted letters and spoken on behalf of the prosecution and the defense, and some had asked that defendant be given a second chance. The court observed that although defendant's statement to law enforcement was not admitted at trial, it contained what could be characterized as an admission, when, near the end of the interview and after multiple denials, defendant said his wife had no idea what really went on and "would kill" him, and that he could not deny what was coming out, but they were saying he did it and he just did not remember any of it. As a result, defendant's unsworn denials, contained in the probation report, carried no weight with the court. The court stated that, considering all the evidence presented, it was satisfied sufficient evidence supported the verdicts. The court then turned to the appropriate sentence. B. Analysis

Defendant now says he is entitled to a remand for a new trial motion, because the trial court, in denying defendant's implied motion, improperly relied on what it characterized as defendant's admission of guilt. Defendant's claim falters at its inception: Defendant never moved for a new trial, and a court has no authority to grant one on its own motion. (People v. Clark (2011) 52 Cal.4th 856, 979, fn. 36; People v. Rothrock (1936) 8 Cal.2d 21, 24; see § 1181 ["[w]hen a verdict has been rendered . . . against the defendant, the court may, upon his application, grant a new trial" (italics added)].) Assuming such a motion could be implied, we will not do so here, where defense counsel expressly stated he would not be making such a motion.

Defendant argues the trial court considered and ruled on the issue, thereby preserving it. The cases he cites as support for this proposition are, however, legally and factually inapposite. (See People v. Abbott (1956) 47 Cal.2d 362, 372-373 [reviewing court treated issue of erroneous admission of evidence as properly before it where trial court passed on admissibility of all evidence regardless of whether timely objection was raised]; People v. Dang (2001) 93 Cal.App.4th 1293, 1299 [reviewing court treated issue as preserved where trial court erroneously believed requisite Evid. Code, § 352 objection made].)

"A court may grant a new trial when the verdict is contrary to the evidence. (§ 1181, subd. 6.) 'The court extends no evidentiary deference in ruling on [a motion under that subdivision]. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a "13th juror." [Citations.]' [Citation.]" (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068-1069.)

We believe that, when they are fairly read, the trial court's comments about the sufficiency of the evidence were not made in the context of that court sitting as a 13th juror, but rather were a response to defense counsel's argument regarding the appropriate sentence, and to those who spoke on defendant's behalf. Accordingly, the issue was not preserved.

Anticipating this result, defendant turns to the inevitable allegation of ineffective assistance of counsel. We reject this claim as well. We cannot tell, on this record, whether inability to obtain trial transcripts was counsel's only reason for not bringing such a motion, or whether other, valid tactical reasons existed. (See People v. Mendoza Tello, supra, 15 Cal.4th at p. 266; People v. Sanders (1990) 221 Cal.App.3d 350, 363.)

VI

SENTENCING ISSUES

In imposing sentence, the trial court found defendant ineligible for probation pursuant to section 667.61, subdivision (h). The court stated it would not grant probation in any event, as defendant violated a position of trust and showed no remorse.

The court found that, pursuant to section 667.61, subdivisions (e)(4) and (j)(2), counts 1, 2, 5, and 6 each carried a mandatory term of 25 years to life in prison while, pursuant to section 288.7, subdivision (b), counts 3 and 4 each mandated a term of 15 years to life. Accordingly, the court imposed those terms.

With respect to whether the terms should be served concurrently or consecutively, the court stated it had considered the criteria affecting concurrent and consecutive sentences. (See Cal. Rules of Court, rule 4.425.) It agreed with the probation report's conclusion that the offenses were committed at different times and that this was not a single period of aberrant behavior. (See id., rule 4.425(a)(3).) The court stated it was mindful of section 667.61, subdivision (i) and section 667.6, subdivision (d), which referenced whether defendant had a reasonable opportunity to reflect on his actions between the commission of the crimes and nevertheless resumed his assaultive behavior.

The court observed that in his statement to the probation officer, defendant faulted the accuracy of the police reports. The court noted it was the trial record that governed, but that the jury was not privy to defendant's admission, which the court found spoke "volumes" about defendant's culpability, and which the court considered in the context of section 667.6, subdivision (d). The court found it retained discretion in the matter of concurrent/consecutive sentences, and that ordering sentence on each count to be served consecutively would be cruel and unduly punitive. The court noted defendant had no prior criminal history and achieved a low score on the risk assessment scale.

The court concluded that the order it would make regarding concurrent and consecutive sentences was "fair and just . . . under the totality of the circumstances in this case." It then imposed a term of 25 years to life in prison on counts 1 and 5, and ordered that count 5 be served consecutively to count 1. It imposed a term of 15 years to life on count 3, and ordered it to be served consecutively. It ordered the terms imposed on counts 2, 4, and 6 to be served concurrently, resulting in an aggregate term of 65 years to life.

Defendant now challenges the trial court's imposition of (1) consecutive terms, and (2) terms of 25 years to life on counts 1, 2, 5, and 6. We address each claim in turn. A. Imposition of Consecutive Terms

Defendant contends the trial court abused its discretion by imposing consecutive terms based on its purportedly mistaken treatment of defendant's pretrial statement as an admission of guilt. We conclude the claim was forfeited, and any error was harmless in any event.

1. Background

As we described in our discussion of defendant's claim regarding a new trial motion, ante, defendant gave a statement to law enforcement. Defendant was advised of, and waived, his rights, and essentially denied improperly touching D. or V. Near the end of the interview, when Horne suggested defendant needed counseling given everything he had been through, such as the loss of his child and having a drinking problem, the following took place:

"Q: Am I way off base here or am I pretty much naming it?

"A: You're nailing it. I need help. My wife's been telling me to get help too.

"Q: Does she have any idea what really went on? Have you ever told her?

"A: No. No idea, man. She would kill me.

"Q: Okay. So she has no idea about any of that stuff?

"A: Has no idea about that. That's why she was like, 'You need to go in there and face it.' I was like, 'Yeah, I'll go in there.' It's just the day I found out I worked till 8:00 and I go . . .

"Q: No - no.

"A: You know, I don't want to lose my job.

"Q: I understand.

"A: Now all this is coming out. I can't - I can't deny it. They're saying that I did it and I just don't remember any of it.

"Q: This [is] what we'll do, okay. You tell your wife whatever you want to tell your wife. . . . Is there anything else you want to tell me? Anything else I need to know?

"A: No. I just . . .

"Q: Why do you think you did these things?

"A: When - when I drink my consciousness - I - again, I don't know. I don't know what happened."

Prior to trial, the court and counsel discussed admissibility of the interview. Defense counsel said he would not be raising a Miranda ¹⁹ issue. He asked the court to listen to the recording of the statement, however, as he was going to have arguments "related to the style of the interview in terms of court rulings on its admissibility and what not." Defense counsel subsequently stated his concerns were Horne's statements about girls not lying and how he knew they were telling the truth, which, counsel asserted, went to the issue of vouching and were inappropriate and inadmissible. The prosecutor, having filed an in limine motion seeking to preclude the defense from introducing evidence of defendant's denials, confirmed she did not intend to introduce the statement in her case-in-chief. Defense counsel also stated he did not intend to play the recording in the defense case.

19 Miranda v. Arizona (1966) 384 U.S. 436.

During its rulings on the various in limine motions, the court stated it appeared no ruling was necessary on the People's motion to preclude evidence of defendant's denials. The court noted the only potential for admission of the interview would be for impeachment purposes. It also observed that, while most of the statement consisted of denials, there was what could be characterized as an admission at the end.

At the conclusion of the defense case, the prosecution sought to have defendant's statement admitted as rebuttal evidence. The prosecutor argued the statement contained admissions that could constitute rebuttal to I.'s testimony that defendant said he was innocent, and to his character witnesses. Defense counsel objected and argued that defendant did not testify, his statement was not rebuttal evidence, and the defense did not offer any evidence that would "open the door" to playing the recording. The trial court denied the People's request, noting the prosecutor chose not to present defendant's admission in her case-in-chief, and defendant neither testified nor did he open the door to the evidence.

2. Analysis

Defendant now contends the trial court erred by imposing three consecutive terms, because it mistakenly treated defendant's statement as a confession of guilt and relied on that statement in imposing sentence. Defendant argues that, taken in context, the statement was not an admission of guilt; and if it was, it was coerced and, hence, unreliable. (See U.S. v. Messer (9th Cir. 1986) 785 F.2d 832, 834 [trial court's reliance on materially false or unreliable information in sentencing violates due process]; accord, People v. Eckley (2004) 123 Cal.App.4th 1072, 1080-1081.) We reject his claim for three reasons.

First, as is readily apparent from the summary above, defendant never objected to his statement on the ground it was coerced. Accordingly, he cannot claim coercion on appeal. (People v. Kennedy (2005) 36 Cal.4th 595, 611-612, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) "Because the question of coercion turns on the intensely factual inquiry into the totality of the circumstances [citation], it is an especially poor candidate for first-time consideration on appeal. [Citation.]" (People v. Quiroz (2013) 215 Cal.App.4th 65, 78.)

Second, defendant failed to object to the trial court's reliance on the statement. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) An objection to consecutive terms in general — particularly on the ground such terms would result in a sentence that was excessive or inappropriate — does not preserve a complaint about a specific reason. (Cf. People v. Scott (1978) 21 Cal.3d 284, 290 [objection is sufficient if it fairly apprises trial court of issue court is being called upon to decide].) Here, although the probation officer's report did not list defendant's statement as a reason supporting imposition of consecutive terms and the trial court did not announce a tentative sentence and its reasons therefor, its postsentence response to the prosecutor's request for clarification demonstrates it would have entertained an objection had one been made. Accordingly, defendant had a meaningful opportunity to object, but failed to do so. Thus, he has forfeited the issue.

Third, assuming the statement was not an admission of guilt, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Clearly, consecutive terms were permissible here, since the offenses occurred on separate occasions. (See, e.g., People v. Garza (2003) 107 Cal.App.4th 1081, 1092.) A consecutive sentence can be imposed based on a single criterion (People v. King (2010) 183 Cal.App.4th 1281, 1323), and the trial court here did not rely solely on defendant's statement. The court's comments make it clear it would have imposed consecutive terms even absent defendant's statement; hence, any error was harmless and a remand for resentencing is not required. (See People v. Sperling (2017) 12 Cal.App.5th 1094, 1104.) B. Imposition of Terms of 25 Years to Life

As previously described, defendant was convicted, in counts 1, 2, 5, and 6, of violating section 288, subdivision (a), "as charged in . . . the First Amended Information . . . ." D. was the victim named in counts 1 and 2, while counts 5 and 6 involved V. Jurors found, as to all four counts, that defendant committed the violations of section 288, subdivision (a) against more than one victim, within the meaning of section 667.61, subdivision (e)(4). Based on this finding, the court imposed a sentence of 25 years to life in prison on each count, as mandated by section 667.61, subdivision (j)(2).

The first amended information alleged counts 1 and 2 occurred on or about December 21, 2010, through December 31, 2013; and counts 5 and 6 occurred on or about December 23, 2011, through December 22, 2013. Prior to September 9, 2010, section 667.61, subdivisions (b) and (e)(5) provided for a sentence of 15 years to life under the circumstance found here, i.e., the commission of violations of section 288, subdivision (a) against more than one victim. Effective September 9, 2010, however, section 667.61, subdivisions (b) and (e)(4) were amended, and subdivision (j)(2) was added, to provide that commission of violations of section 288, subdivision (a) against more than one victim under 14 years old mandated a sentence of 25 years to life in prison. (Stats. 2010, ch. 219, § 16.)

Defendant does not dispute that the information charged offenses occurring after the effective date of the amendment. He observes, however, that the court instructed, pursuant to CALCRIM No. 207, that "[t]he People are not required to prove that the crimes took place exactly on [the] dates [alleged in the first amended information], but only that it happened reasonably close to those dates." (Italics added.) Because "reasonably close" is a relative, flexible term, defendant argues, the jury did not find whether the crimes took place on or after the effective date of the amendment. Accordingly, he says, imposition of a sentence of 25 years to life on counts 1, 2, 5, and 6 violated the ex post facto clauses of the federal and state Constitutions, and ran afoul of the United States Supreme Court's holding in Alleyne v. United States (2013) 570 U.S. 99 (Alleyne).

"Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. [Citation.] California's ex post facto law is analyzed in the same manner as the federal prohibition. [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 755.) "A law which makes more burdensome the punishment for a crime after its commission violates ex post facto provisions . . . . [Citations.]" (People v. Fioretti (1997) 54 Cal.App.4th 1209, 1212-1213.) Thus, if the punishment of 25 years to life pursuant to section 667.61, subdivision (j)(2) exceeded the punishment defendant could have received under the applicable law when the offenses were committed, imposition of that sentence violated the ex post facto clauses of the federal and state Constitutions. (See Valenti, supra, 243 Cal.App.4th at p. 1174; People v. Hiscox (2006) 136 Cal.App.4th 253, 257 (Hiscox); People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)

"[A]ny fact that increases a defendant's minimum or maximum sentence is an element of the offense that must be submitted to the jury. [Citation.]" (Valenti, supra, 243 Cal.App.4th at p. 1176; see Alleyne, supra, 570 U.S. at pp. 111-112, 114-115; People v. Osuna (2014) 225 Cal.App.4th 1020, 1038-1039, disapproved on another ground in People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8.) Thus, to invoke the sentencing provision of section 667.61, subdivision (j)(2), the prosecutor had to prove to the jury that defendant committed the offenses underlying counts 1, 2, 5, and 6 on or after September 9, 2010, that provision's effective date. (See People v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas); Hiscox, supra, 136 Cal.App.4th at p. 260.)²⁰

20 In past cases, the Attorney General has conceded an ex post facto claim may be raised for the first time on appeal (see, e.g., Rojas, supra, 237 Cal.App.4th at p. 1306; Hiscox, supra, 136 Cal.App.4th at p. 258), and he does not argue the contrary here. He does contend, however, that defendant's claim of instructional error should be deemed forfeited, because CALCRIM No. 207 accurately states the general rule (Rojas, supra, 237 Cal.App.4th at p. 1304), and defendant lodged only a general objection to the instruction on the ground the date ranges were too broad, without asking for a modification or clarification. Usually, the Attorney General's point would be well taken. If defendant's claim has merit, however, his substantial rights were affected. Failure to object to, or request a modification or clarification of, a jury instruction does not constitute forfeiture in such circumstances. (§ 1259.)

In light of the date ranges specified in the first amended information and the "as charged in" language of the verdicts, the verdicts normally would be deemed sufficient to establish the date of the offenses. (Cf. Rojas, supra, 237 Cal.App.4th at p. 1306; Hiscox, supra, 136 Cal.App.4th at p. 261.) Because CALCRIM No. 207 was given, however, we cannot reach the same conclusion in the present case. Whatever the parameters of the instructional phrase "reasonably close," jurors rationally could have concluded conduct occurring prior to September 9, 2010, qualified, at least with respect to the time frame alleged in counts 1 and 2, which began on December 21, 2010. (See, e.g., People v. Peyton (2009) 176 Cal.App.4th 642, 660-661 [evidence at trial, which showed crimes were committed during fall of 2004, was not insufficient where information alleged crimes occurred on or about October 1, 2005]; People v. Triplett (1945) 70 Cal.App.2d 534, 541 [no fatal variance where indictment charged offenses occurring during or about July 1943, and evidence showed offenses were committed in about August 1943]; People v. Forbragd (1932) 127 Cal.App. 768, 771-772 [no fatal variance where information charged, and jury instructions referenced, offense committed in October 1930, but prosecutor elected at trial to rely on act occurring in August 1930].)

We recognize, as the Attorney General points out, that the foregoing cases do not address ex post facto laws. We find them at least somewhat instructive, however. We do not believe rational jurors would interpret "reasonably close" to encompass a lengthy time frame. (Cf. Hooker v. U.S. (D.C. 2013) 70 A.3d 1197, 1205-1207 [government met burden of proof where charged offenses were alleged to have occurred between on or about August 1, 2008, and December 31, 2008, but some evidence showed events could have taken place between May 2007 and early 2009].) Nevertheless, we do not find it unreasonable to believe they may have found conduct occurring within a few months of the alleged dates to have been sufficiently close to those dates so as to form the basis of a conviction, in light of CALCRIM No. 207.

The Attorney General observes that the trial court instructed the jury on unanimity with CALCRIM No. 3501. That instruction set out the date ranges of the conduct with which defendant was charged, then told jurors: "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, one, 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 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 a [sic] number of offenses charged." (Italics added.) Because the requirements are stated in the disjunctive and only the second option references acts occurring during the alleged time frame, we disagree with the Attorney General's claim this instruction "limited the jury to considering acts [defendant] committed between the dates charged," particularly when jurors were directed to consider all the instructions together.

Since CALCRIM No. 207 permitted the jury to base convictions on lewd conduct occurring before the effective date of section 667.61, subdivision (j)(2) and the jury was not asked to make findings on the time frames within which the offenses were committed, "the verdicts cannot be deemed sufficient to establish the date of the offenses unless the evidence leaves no reasonable doubt" the convictions were based on incidents occurring on or after September 9, 2010. (Hiscox, supra, 136 Cal.App.4th at p. 261; accord, Rojas, supra, 237 Cal.App.4th at p. 1306.)

Defendant argues the error constitutes pure sentencing error, which, he says, requires us to assess prejudice only in the context of sentencing — whether the sentence would have been the same absent the error — without reference to the evidence presented at trial. Because the sentencing error was prejudicial as to counts 1, 2, 5, and 6, he says, a reduction in sentence is required as to each of those counts.

Defendant relies, in large part, on U.S. v. Lewis (3d Cir. 2015) 802 F.3d 449 (Lewis). In that case, the court explained: "The error here was a sentencing error, as nothing was wrong with Lewis's indictment or trial. The indictment charged Lewis with an offense — using or carrying [a firearm] — and did not omit any elements of that charge. At trial, the jury received the proper instructions for the using or carrying offense. The jury properly entered a verdict finding Lewis guilty of that offense, so Lewis was properly convicted of that offense. But, then, the District Court sentenced Lewis for the offense of brandishing. As in Alleyne, this was the error. [Citation.]" (Id., p. 455.)

Lewis distinguished the situation in which a trial error — failure to instruct on an element of the offense — led to the sentencing error of imposing a sentence beyond the prescribed statutory maximum. In that situation, the analysis appropriate for trial errors, "which turns on whether it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,' " was applicable, and so permitted the reviewing court to examine the trial record in assessing prejudice. (Lewis, supra, 802 F.3d at p. 456.)

"Because the date[s] of the . . . act[s] of sexual abuse increased defendant's mandatory minimum and maximum sentences, the date was an element of each charged crime." (Valenti, supra, 243 Cal.App.4th at p. 1176; see Alleyne, supra, 570 U.S. at pp. 111-112, 114-115.) The trial court's failure to instruct that the acts had to occur on or after September 9, 2010, therefore, "is federal constitutional error comparable to the omission of an element . . . ." (Valenti, supra, at p. 1176; see People v. Farley (1996) 45 Cal.App.4th 1697, 1710.) Although it may have resulted in sentencing error, that error " 'is inextricably intertwined with a trial error (failing to submit an element of the offense to the jury).' [Citation.]" (Lewis, supra, 802 F.3d at p. 455.) Accordingly, we may look to the record of trial in assessing prejudice. (Id. at p. 456; see United States v. Marcus (2010) 560 U.S. 258, 263-265.)

Defendant says that if we reach this conclusion, reversal still is required on count 1. We take this to be a concession the error was harmless beyond a reasonable doubt with respect to counts 2, 5, and 6, and do not further address those counts.

"[T]he failure to instruct on an element of the offense is harmless if the People prove beyond a reasonable doubt that no substantial evidence supports a contrary finding on the omitted element. [Citations.]" (Valenti, supra, 243 Cal.App.4th at pp. 1176-1177, citing Neder v. United States (1999) 527 U.S. 1, 17-19 & People v. Mil (2012) 53 Cal.4th 400, 417-419.) The People have not met that burden here. As described in detail by defendant, the evidence presented at trial was uncertain and ambiguous concerning when the first incident between defendant and D. occurred.

Jurors certainly could have found the first incident took place within the time frame alleged as to count 1, and it may even be, as the Attorney General asserts, it is "likely" the first improper touching occurred after fall of 2011. Nevertheless, we cannot conclude, beyond a reasonable doubt, that no substantial evidence supports a finding the incident took place prior to the effective date of section 667.61, subdivision (j)(2). "It would be inappropriate for us to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date. [Defendant] has a constitutional right to be sentenced under the terms of the laws in effect when he committed his offenses. For a court to hypothesize which acts the jury may have based its verdicts on, or what dates might be attached to certain acts based on ambiguous evidence, would amount to 'judicial impingement upon the traditional role of the jury.' [Citation.]" (Hiscox, supra, 136 Cal.App.4th at p. 261.)

In light of the foregoing, the sentence imposed on count 1 must be reduced from 25 years to life in prison to 15 years to life in prison. Rather than simply modify the judgment accordingly, however, we will vacate the entire sentence and remand the matter for a new sentencing hearing. We find it appropriate to allow the trial court again to determine, particularly with respect to concurrent versus consecutive terms, what constitutes a fair and just sentence under the totality of the circumstances.

DISPOSITION

The sentence is vacated and the matter is remanded to the trial court with directions to resentence defendant in accord with this opinion. In all other respects, the judgment is affirmed.

/s/_________

DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.