People v. Arias

Full title: THE PEOPLE, Plaintiff and Respondent, v. MIGUEL SERVIN ARIAS, Defendant…

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

Date published: Dec 13, 2017

H043447 (Cal. Ct. App. Dec. 13, 2017)

Opinion

H043447

12-13-2017

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL SERVIN ARIAS, Defendant and Appellant.

ELIA, ACTING P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1357512)

Following a jury trial, defendant Miguel Servin Arias was found guilty of five sex offenses, specifically two counts of a lewd or lascivious act upon a child under 14 years old (Pen. Code, § 288, subd. (a))¹ (a lesser included offense of count 1 and count 5 as charged), two counts of a forcible lewd or lascivious act upon a child under 14 years old (Pen. Code, § 288, subd. (b) (1)) (counts 2 and 3), and forcible sexual penetration (§ 289, subd. (a)(1)) (count 4). The victim of count 5 was Zoe Doe, and the victim of the other four offenses was Alana Doe. As to all offenses, the jury found true that defendant had been convicted of an enumerated sex offense (§ 667.61, subd. (c)) against more than one victim within the meaning of 667.61, subdivisions (b) and (e). The trial court sentenced defendant to five consecutive, 15-years-to-life terms pursuant to section 667.61, subdivision (b), commonly known as the One Strike law, for an aggregate prison term of 75 years to life.

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

Defendant raises multiple claims of error on appeal. We find them meritless and affirm the judgment.

I

Procedural History

By information filed April 17, 2014, defendant was charged with committing the following sex offenses against Alana Doe: three forcible lewd or lascivious act on a child under the age of 14 years, "namely 7-9," (§ 288, subd. (b)(1)) (counts 1, 2 & 3) on or about and between June 1, 2005 and September 1, 2007 and forcible sexual penetration (§ 289, subd. (a)(1)) (count 4) on or about and between September 1, 2006 and September 1, 2007. The information also charged defendant with committing a lewd or lascivious act on Zoe Doe, a child under the age of 14, "between 5 and 7," (§ 288, subd. (a)) (count 5) on or about and between September 1, 2002 and June 1, 2004. A multiple victim penalty allegation (§ 667.61, subds. (b), (e)) was alleged as to each count.

Before trial, on June 1, 2015, the trial court granted the People's motion to correct the date range of count 5 to correspond to when Zoe was five to seven years old. The defense did not object to the amendment.

In closing argument at trial, the People argued that the charged lewd and lascivious act against Zoe occurred during a three-year period, beginning "the first day [she] turned 5" and ending "the very last day that she was 7 years old."

As to count 1, the jury found defendant not guilty of committing a forcible lewd and lascivious act upon Alana, and it instead found defendant guilty of the lesser included offense of committing a lewd or lascivious act upon her (§ 288, subd. (a)). The jury found defendant guilty of counts 2, 3, and 4 as charged and count 5 as amended. The jury found all the multiple victim penalty allegations (§ 667.61, subd. (b), (e)) to be true.

On February 19, 2016, the trial court denied defendant's motion for a new trial. The court imposed a 15-years-to-life term on count 1 (§ 288, subd. (a)), and consecutive 15-years-to-life terms on the remaining counts, for a total sentence of 75 years to life. In sentencing defendant, the trial court explained that defendant had the opportunity to reflect on his conduct between the separate incidents.²

2 Section 667.6, subdivision (d), mandates "[a] full, separate, and consecutive term . . . for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." Section 667.6, subdivision (e), includes a forcible lewd or lascivious act under section 288, subdivision (b), and sexual penetration in violation of section 289. "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior." (§ 667.6, subd. (d).) Insofar as imposition of consecutive sentences was discretionary, the trial court made clear that it was exercising it discretion to impose consecutive sentences.

Defendant timely appeals from the judgment of conviction.

II

Evidence

Alana, the alleged victim of counts 1 through 4, testified at trial. At the time of trial, she was 17 years old, and she had just graduated from high school. She testified that when she was little she played at defendant's house, which was "right across the street" from her home and had an above-ground pool. Alana swam there a lot. She recalled being "7 or so" when she was going to his house to play. Defendant had three boys. Defendant was a friend of her family, and the families were "pretty close."

Alana recalled that when she was seven years old, she asked to borrow defendant's Slip 'N Slide, and she went with defendant into his garage to get it. Defendant suggested that she lie down on the weight bench, which she did, and he told her to grab the weight bar. Defendant helped Alana lift the bar, and he put it back up. Defendant then told her to roll up her shirt, and she did. He touched her breasts with his hands. This was the first incident of inappropriate touching committed by defendant. Defendant told her not to tell anyone and warned that he would tell her mother or her friends at school if she told someone. Alana felt scared because she thought she would get in trouble. Defendant said it was their secret. Defendant then found the Slip 'N Slide and gave it to her.

For years Alana did not tell anyone what had happened in defendant's garage. She believed that if she did, she would get in trouble with her mother, defendant, or someone.

After the garage incident, Alana continued visiting defendant's house and playing with his sons and other neighborhood children there. There were at least four separate incidents that involved defendant touching Alana's body while they were alone together on the side of the garage. She recalled being "somewhere between 7 and 10" years old and in elementary school when those incidents occurred. When she was in that age range, Alana was going to defendant's house a few times every week.

It was defendant's idea to go to the side of the garage; he told her to go back there. This area was hidden from view by anyone in the backyard. Alana's pants were down, but she was wearing underwear. She recalled that, during the first time, defendant told her to bend over once her pants were down. He was behind her. Alana indicated that, each of the four times he touched her vagina, her pants were rolled down and defendant touched her vagina with his hand, skin to skin.

During a separate, additional incident on the side of the house, defendant took his penis out of his pants and showed it to Alana. Defendant told her to put her mouth on his penis. She said she did not want to do that. He asked her multiple times, but she kept saying no. Defendant then asked Alana to touch his penis, and she touched it with her hand.

During one of the incidents in the side yard of defendant's home, when Alana was approximately nine years old, defendant had Alana bend over and inserted his finger inside Alana's vagina. This occurred "[t]owards the end" of the touching incidents.

During each of the incidents, defendant told Alana not to tell, and he indicated that he would tell her mother or her friends if she told. Those warnings made her do the things that he was telling her to do. When she was little, someone saying, " 'I'm going to tell your mom,' was the scariest thing."

On another occasion inside defendant's house, when Alana was between seven and 10 years old, Alana was bending down to help one of defendant's boys do a somersault in a hallway. Defendant was behind Alana, and he reached between her legs with a hand and touched her vagina over her clothes.

The touchings stopped before middle school when Alana stopped going over to defendant's house because she realized that defendant's conduct was "very wrong." When she walked to church, she crossed the street to avoid running into him. Defendant once asked when she was going to come back to his house, and she said she did not know.

The summer before her sophomore year of high school, Alana met Angela A. while participating in her church's youth group, and they developed a relationship. Angela, a licensed clinical social worker, volunteered at Alana's church and helped run the youth group. In March 2013, Angela gave Alana a ride home from a youth group event.

In Angela's car, Alana brought up the subject of eating disorders, which she had been researching online. Alana had read that there was some connection between child molestation and eating disorders, and she mentioned that fact to Angela. After pulling up in front of Alana's house, they continued talking in the car. Angela asked whether Alana had been molested. Alana put her "shirt over her face" and became very quiet, withdrawn, and anxious. She finally answered yes. While sitting in the car, they discussed what had happened for approximately an hour. Alana described what had occurred, beginning at age seven until the beginning of middle school, and she identified defendant as the perpetrator. Angela, who was a mandated reporter, told Alana that she had to report what Alana had disclosed. Angela was the first person to whom Alana had revealed the molestations.

The two of them went into Alana's house, and Angela told her mother what Alana had disclosed. Alana was unable to "say it" because she "was afraid." She had not previously told her mother or anybody else about the incidents because she was scared. Her mother was shocked.

At 12:54 a.m. on March 21, 2013, Scot Harris, a police officer, responded to a report of a prior sexual assault. The officer went to Alana's home and spoke with her.

Alana disclosed to Officer Harris that defendant, a neighbor and family friend, had sexually abused her at his house when she was little. She estimated that defendant was in his mid to late 30's and approximately six feet tall. She indicated the incidents had occurred between 2006 and 2009. Alana had played with defendant's oldest son, and they had been good friends.

Alana told Officer Harris that the first incident occurred in defendant's garage where defendant and she were looking for a Slip 'N Slide. Alana thought the incident most likely occurred in the summertime. She indicated that defendant had her take off her shirt and touched her skin on "the top" with his bare hands.

Alana further disclosed that, on other occasions, defendant had her take off her pants and that he touched her "bottom half," "skin to skin," with his fingers while they were alone together. Defendant usually was wearing shorts without a shirt. Alana indicated that those incidents happened "almost every single time" she was over at defendant's house "if he could get [her] away from [unintelligible]," and the incidents occurred while they were in the backyard. To get her alone, defendant asked for her help with something. Alana also indicated that, during one of the incidents, defendant put his finger in her vagina and she felt afraid. Alana reported that another time defendant wanted her to put her mouth on his "privates" but she refused and that he told her to "touch it then" and he "made [her] do it."

Alana told Officer Harris that, after the incident in which defendant made her touch his "privates," defendant had her take off her clothes at least five more times. She tried not to go over to defendant's house "as much as [she] could," but she had no answer if her mother asked why she was not going over there. Defendant also threatened to tell her mother or friends at school if she did not come back to his house.

Alana indicated to Officer Harris that she eventually stopped going over to defendant's house. On one occasion, a few years before the interview, Alana crossed the street to get a ball that had gone there, and defendant, who was outside, asked her when she was going to come back over. But she never went back to his house, and she tried to avoid him.

Alana told Officer Harris that Angela was the first person that she told about the molestations. Alana had known Angela since the summer before the interview.

Detective John Lynch interviewed Alana a couple of days later at the Children's Interview Center. Alana felt more comfortable talking at the center than she had at home. Alana told the detective about the first touching incident, which occurred approximately when she was seven years old during the summer before third grade. Alana was in the garage getting a Slip 'N Slide with defendant, defendant had her lie down on a weight bench and helped her lift the bar, defendant then had her take off her shirt, and defendant touched her "boobs" with his hands. Defendant got the Slip 'N Slide, and he told Alana that if she did not come back that he would tell her mother or friends. While they were still in the garage, defendant told Alana that it was a secret and to not to tell anybody.

Alana told Detective Lynch that subsequent incidents occurred near the doghouse in the side yard during the daytime. Defendant, who was usually wearing just shorts and sandals, told her what clothes to partially remove so he could touch her, he had her bend over, and he then touched her on her "lower half" that she uses to go "to the bathroom" with his hands. By "lower half," Alana meant vagina. Defendant told her to keep it a secret and warned that if she told anybody, he would tell her mother or go to her school and tell her friends.

When asked by Detective Lynch, Alana estimated that defendant touched her "lower half," meaning vagina, four or five times and that five incidents occurred on the side of the house. Defendant managed to get Alana by herself by asking her to go with him to do or get something. Alana thought defendant would tell her mother or her friends if she did not go with him. Before an incident, defendant told her to keep it a secret, and afterward, he told her to remember not to tell anybody and it was their secret.

Alana explained that the incidents in defendant's side yard had occurred in basically the same way each time, and occurred while she was in elementary school. On one occasion, however, defendant "put his hand inside" for approximately one or two seconds.

Alana told Detective Lynch that once while in defendant's side yard, defendant took off his pants, and he wanted her to put her mouth on "his thing" that he uses for "going to the bathroom," but she refused to do that. She told the detective that defendant then told her "just to touch it, so [she] did" with her hand. After that incident, defendant again warned Alana not to tell anybody or he would tell her parents and told her to keep it a secret. Alana thought she would "get in trouble" if defendant told her mother.

Alana described to Detective Lynch an incident that occurred inside defendant's house when she was approximately eight years old. She was bending down to help defendant's youngest son to do somersaults, and defendant touched her "lower half," meaning her vagina, over her clothes.

Alana told Detective Lynch that she stopped going to defendant's house because she "started realizing it was very wrong." Alana told the detective that, when she was in middle school, a ball rolled across the street, and she tried to retrieve as fast as she could to avoid talking to defendant, but defendant saw her and asked when she was going to come back over. Alana told him that she did not know and went home. When she walked to church past his house, Alana walked on the other side of the street.

Alana told Detective Lynch that Angela, a youth group leader whom Alana had known since the previous summer, was the first person to whom Alana disclosed what had happened with defendant. While Alana was in elementary school, she did not tell anybody because she did not want to get in trouble, and Alana thought she would get in trouble if she told someone. Defendant had threatened to tell her mother or her friends or everybody at school if she did not come back to his house.

Alana explained to Detective Lynch that, while Angela was bringing Alana home from a youth group event, they talked about Alana's research into the possible causes of an eating disorder that she was developing and one of the causes was sexual abuse. Angela asked Alana if she had been sexually abused, and Alana said yes and revealed what had happened. Alana told the detective that she had felt relieved that she had told someone, but she also felt scared because she did know what was going to happen.

At trial, Alana testified that she viewed defendant as an authority figure in the neighborhood because he was an adult. He was much larger than she. She had been scared to tell anyone about the incidents; defendant had said it was their secret.

Alana also disclosed at trial that she had some fears about what would result from disclosing the molestations. She was worried that her younger brother, who was 13 months younger than she was, and her cousin, who was the same age as she, would be mad, yell, or retaliate, and that defendant's family would be mad at her. Alana also did not want defendant's children to "hear about it and go through" it.

After interviewing Alana, Detective Lynch investigated whether there were other young girls that had played at defendant's house and learned of Zoe. Detectives Lynch and Tracey interviewed Zoe in the principal's office of her school. When Detective Lynch asked Zoe whether anything inappropriate had occurred with defendant at his home when she was younger, Zoe became "really quiet all of a sudden," she looked down, her eyes welled up, and she looked as if she was about to cry. Zoe told him about an incident when defendant pulled her closer, put his hand down the front of her pants, and tried to touch her crotch. She said she had not previously told anyone what had happened because she was scared.

Zoe, who was born in 1999, testified at trial when she was 16 years old and in high school. When she was younger, Zoe and other children in the neighborhood played and sometimes swam in the above-ground pool at defendant's house, which was a couple of doors down from her house. The families were "pretty friendly." Zoe recalled playing at defendant's house from the time she was in preschool to about second grade. Zoe went over to defendant's house approximately two to three times a week, and she brought her little sister, who was two years younger than she, with her.

When Zoe was between five and seven years old, "somewhere between 2004 and 2007," Zoe and her younger sister were playing in the bedroom of one of defendant's sons. Defendant told Zoe to come with him. She followed defendant into defendant's adjacent bedroom, and defendant closed the door behind her. She and defendant were facing each other, about two or three feet apart. Zoe was closer to the door. She was "[p]retty short," and defendant was "a grown man."

Defendant unzipped his jeans and took out his penis. He was not wearing a shirt. Defendant had said something, but, at trial, she could not remember what. Defendant walked closer to Zoe and reached for her. Defendant put the fingertips of his right hand inside the front of her shorts, which had an elastic waistband, but he did not touch her "private part." She was wearing underwear, which was between his skin and her skin. When defendant was attempting to push his hand further down, Zoe pulled away, opened the door, and ran out of the room because she "didn't like what he was doing" and "was uncomfortable." Zoe took her sister and ran home.

Zoe further testified that she had been confused and had not fully understood what had happened. She did not tell her parents about the incident. She continued to play at defendant's house until about second grade, when she was about seven or eight years old. At times, defendant said something to her like, "Please," "Please, come on," and "Just let me do it." Zoe thought that defendant meant "something like what he had done in the room."

In May 2013, when Zoe was 13 or 14 years old and in eighth grade, she was pulled out of class at her middle school to talk with Detective Lynch and another police officer. She had no idea why the officers wanted to talk with her.

When Detective Lynch asked about whether she had gone over to defendant's house, Zoe indicated that she used to go there a few days a week. The officers asked whether defendant had ever done anything that bothered her. Zoe said that defendant was "a little touchy" and "sort of touching a lot," and, when Detective Lynch asked what she meant, Zoe said, "Like, sexually sometimes."

Zoe told the officers that defendant had tried touching her crotch in his room and that defendant was within a few inches of touching her crotch, but she ran away. By "crotch," Zoe meant the part of her body for "[u]sing the bathroom." Zoe explained that defendant said, "Zoe come over here," and he brought her into his room and then closed the door. Defendant pulled Zoe a little closer, and he then tried to touch her crotch with his right hand, which made her feel uncomfortable. Zoe said that defendant's hand touched her "a little bit below the bottom of [her] pants" on the outside of her clothes. Zoe recalled that she opened the door, ran out of defendant's room, got her sister, and went home.

Zoe told the officers that she had never before told anyone about the incident because she was afraid. Zoe named the elementary school she had been attending at the time of the incident; she indicated that she was in kindergarten or first grade or "maybe even before elementary [school]" and indicated that she was five or six years old when it happened.

Zoe told the officers that, even after the incident, she sometimes went over to defendant's house. She indicated that defendant sometimes said something like, "[C]'mon please," and she "would say no." Zoe thought defendant meant something like, "[P]lease [can] I touch you." Zoe was in second grade when she last went over to defendant's house.

At trial, Zoe explained that she had not told "the whole story" to the police officers; she had left out the fact that defendant had taken his penis out of his pants. Zoe disclosed for the first time that defendant had taken his penis out of his pants during the bedroom incident at the preliminary hearing. She had never told anybody what had happened and that it made her "very uncomfortable to think about" it. She felt uncomfortable with the police officers because she "always felt uncomfortable around men" "[b]ecause of the incident" with defendant.

Miriam Wolf, a licensed clinical social worker, testified concerning child sexual abuse accommodation syndrome (CSAAS), which generally describes the disclosure patterns of sexually abused children. The syndrome involves five categories: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction.

Wolf explained that child sexual abuse ordinarily occurs in isolation and secret, which "communicates to children that this is something that's not okay to talk about" with others. "[C]hild sexual abuse is generally something that happens between a child and an older person . . . , and that, by definition, [involves the child's] developmental helplessness, a gap between . . . their understanding of the ramifications of this kind of relationship . . . ." "[I]n general, children are socialized to listen to adults," and "children are very likely to go along with what [they are] told . . . by that adult in charge."

Wolf testified that children feel stuck or trapped in the situation. She explained that the term "accommodation" within the meaning of CSAAS refers to coping, and children cope with sexual abuse in a myriad of ways. Accommodation may include dissociation, compartmentalization, or toleration of the abuse to avoid disrupting their family and other relationships or other potential consequences of disclosure, and trying to act normal. Sexually abused children sometimes remain "in the situation where they might encounter the perpetrator of sexual abuse."

Wolf reported that approximately "two-thirds of child sexual abuse involves a delayed report of some kind, including people who don't tell for very extended periods of time or who don't even disclose until into adulthood." When children have gone along with sexual abuse early on, they "get themselves into a bind" because "they begin to see themselves as partially responsible for not having told at the beginning," which "reinforces patterns of delayed disclosure . . . ."

As to conflicted disclosure, Wolf explained that sexually abused children can be conflicted about whether to tell on someone they love or care about, and they sometimes "test[] the waters" by incremental disclosure. Disclosure by children is often a process. Children may not have the same sense of time as adults, and, since ongoing sexual abuse may happen over a long period and involve multiple episodes of abuse, the "episodes tend to blur." Some children recant their allegations of abuse.

Wolf made clear that CSAAS is not meant to be used to establish the truth of child sexual abuse allegations. Testimony about the syndrome is merely intended to disabuse the trier of fact of certain myths or misconceptions about child sexual abuse and to explain children's common behavior, reactions to abuse, and patterns of disclosure.

III

Discussion

A. Amendment of Count 5

Defendant contends that the trial court violated due process by permitting amendment of count 5 to state a later time frame. He asserts that he was "not on notice that he would be defending the years 2004 [to] 2007 since [those years] did not match the testimony at the preliminary hearing."

1. Background

Count 5 of the felony complaint filed on June 12, 2013 alleged that, "[o]n or about and between September 1, 2002 and June 1, 2004," defendant "did ATTEMPT TO willfully and lewdly commit a lewd and lascivious act upon . . . Zoe Doe, a child under the age of fourteen years, namely, between 5 and 7, with the intent of arousing, appealing to and gratifying the lust, passions, and sexual desires of the defendant(s) and of the child" in violation of section 288, subdivision (a). (Italic added.)

At the preliminary hearing held on April 11, 2014, Zoe testified that she was born in 1999. She further testified that she had visited defendant's home several times a week to play with his children while she was in kindergarten, when she was five years old, through sometime in second grade, when she was seven or eight years old. Zoe described an incident that occurred when she was in kindergarten or first grade in defendant's bedroom, during which defendant exposed his penis and inappropriately touched her.

Count 5 of the information filed on April 17, 2014 charged defendant with "willfully and lewdly commit[ting] a lewd and lascivious act upon . . . Zoe Doe, a child under the age of fourteen years, namely, between 5 and 7, with the intent of arousing, appealing to and gratifying the lust, passions, and sexual desires of the defendant(s) and the child" in violation of section 288, subdivision (a), "[o]n or about and between September 1, 2002 and June 1, 2004." (Italics added.) Zoe's preliminary examination testimony indicated that those dates corresponded to when she was between three and five years old.

On May 28, 2015, after it had considered motions in limine, the trial court stated that the prosecutor had "mentioned in chambers that [he] might have . . . a clerical fix as to Count 5." The prosecutor indicated that the dates specified in count 5 of the information needed to be corrected.

On June 1, 2015, the trial court stated that the People had proposed a clerical change of the dates specified in count 5 of the information "to match the testimony as presented in the preliminary hearing." Defense counsel indicated that he had no objection. The proposed amendment of count 5 would change the date range so that the time of the alleged offense corresponded to when Zoe was five to seven years old. The court granted the motion.

2. Forfeiture Rule

The People contend that any claim of error concerning the amendment of count 5 was forfeited. We agree.

"Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 (Saunders).) The reason for this rule is that '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' (People v. Vera (1997) 15 Cal.4th 269, 276 (Vera); Saunders, supra, 5 Cal.4th at p. 590.) '[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.' (People v. Kennedy (2005) 36 Cal.4th 595, 612 [disapproved on another ground in People v. Williams (2010) 49 Cal.4th. 405, 459].)" (People v. French (2008) 43 Cal.4th 36, 46.)

By not objecting in the trial court, defendant forfeited his claim that the trial court erred in allowing amendment of count 5 of the information. (Cf. People v. Leonard (2014) 228 Cal.App.4th 465, 481.)

3. No Abuse of Discretion

In any case, defendant has not shown that the trial court abused its discretion in allowing amendment of count 5 of the information to correctly reflect the evidence presented at the preliminary examination.

Section 955 provides: "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." Section 959 states in pertinent part that "[t]he accusatory pleading is sufficient if it can be understood therefrom: [¶] . . . [¶] 6. That the offense was committed at some time prior to the filing of the accusatory pleading."

"Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 317 (Jones).) But a "defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period. 'Beyond that, . . . the prosecution clearly has no duty to provide more explicit notice than human nature and science permit.' [Citation.]" (Ibid.) "Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information. (People v. Thomas (1987) 43 Cal.3d 818, 829.)" (People v. Jennings (1991) 53 Cal.3d 334, 358; see Jones, supra, at p. 318 ["[G]iven the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him"].)

"The court in which an action is pending may order or permit an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings"³ (§ 1009), but an information cannot be amended "so as to charge an offense not shown by the evidence taken at the preliminary examination."⁴ (Ibid.) "Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing" (People v. Winters (1990) 221 Cal.App.3d 997, 1007), but it "authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination." (Id. at p. 1005.)

3 "An . . . information may be amended by the district attorney . . . without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained." (§ 1009.)

4 "[A]n information against the defendant . . . may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." (§ 739.)

An appellate court reviews the trial court's ruling on a motion to amend an information under the abuse of discretion standard. (See People v. Hamernik (2016) 1 Cal.App.5th 412, 424; People v. Flowers (1971) 14 Cal.App.3d 1017, 1020; People v. Byrd (1960) 187 Cal.App.2d 840, 842.) The information stated that the count 5 offense was committed when Zoe was between five and seven years old. Defendant has not demonstrated that the trial court's ruling constituted a manifest abuse of discretion where the amendment conformed to the evidence produced at the preliminary examination. We reject defendant's assertions that the time frame set forth in the amended complaint "did not match the testimony at the preliminary hearing" and that he lacked notice of the time frame of the alleged offense. Defendant has shown no due process violation. B. Alleged Insufficiency of Evidence to Support Findings of Duress

Defendant asserts that the trial evidence was insufficient to show duress as to counts 1 through 4.⁵ With respect to count 1, the jury convicted defendant of a nonforcible lewd act (§ 288, subd. (a)), a lesser included offense of the offense charged. No proof of duress was required for the offense of which defendant was convicted.

5 In his reply brief, defendant asserts that there was no evidence of duress at the preliminary hearing. That claim was forfeited. (See People v. Clark (2016) 63 Cal.4th 522, 552; see also § 996.)

Counts 2 through 4 were forcible offenses based upon duress. (See §§ 288, subd. (b)(1), 289, subd. (a).) Defendant maintains that duress was not proven, arguing that he was not "accused of threatening any harm to anyone or even giving an aggressive look" and there were "no accusations of physical force or push[ing]." He insists that his warning that he would tell their secret to Alana's mother did not constitute duress.

People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitmon)⁶ "established the definition of 'duress' that has been consistently used and has been incorporated in the standard jury instruction for section 288, subdivision (b)(1). [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1009 (Leal).) Pitmon determined that the term "duress" "as used in the context of section 288 [meant] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (Pitmon, supra, at p. 50, fn. omitted.) It determined that "[t]he total circumstances, including the age of the victim, and his relationship to defendant are factors to be considered in appraising the existence of duress." (Id. at p. 51.) "The Pitmon court correctly recognized that duress as an element of section 288, subdivision (b)(1), . . . does not require a showing that the victim believed his or her life would be endangered." (Leal, supra, at p. 1009.)

6 Pitmon, was disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 (Soto) insofar as its language suggested that consent was a defense to forcible lewd acts.

In Pitmon, the appellate court concluded that the defendant had "accomplished his lewd acts by means of duress." (Pitmon, supra, 170 Cal.App.3d at p. 51.) It observed: "[A]t the time of the offenses, [the child] was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of his relative physical vulnerability. In addition, [the] defendant was a stranger whom [the child] encountered in a fairly isolated location." (Ibid.) The court found that those factors had bearing on "the susceptibility of a typical eight-year-old to intimidation by an adult." (Ibid.) The child had "testified that [the] defendant grabbed his hand and forced him to rub [the] defendant's genitals, pulled him away from the bench and made him engage in a series of obscene acts, slightly pushed him on the back during those instances he copulated defendant and restrained him when he tried to escape." (Ibid.) The appellate court, "[v]iewing [the] defendant's physical control over [the child] from the perspective of a normal, average eight-year-old," had "little difficulty in finding defendant's actions constituted an implied threat of force, violence, hardship or retribution which prompted [the child] against his will to participate in the sexual acts." (Ibid.)

"In People v. Leal, supra, 33 Cal.4th 999, [the Supreme Court] held that 'duress,' as used in section 288(b)(1), means ' "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' (Leal, at p. 1004, second italics added, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 50.)" (Soto, supra, 51 Cal.4th at p. 246, fn. omitted.) The Pitmon definition of duress has been applied to forcible sexual penetration in violation of section 289. (Leal, supra, at p. 1005.)

The Supreme Court has made clear that "the legal definition of duress [under section 288] is objective in nature and not dependent on the response exhibited by a particular victim." (Soto, supra, 51 Cal.4th at p. 246.) "[D]uress is measured by a purely objective standard." (Ibid.) "Consistent with the language of section 288 and the clear intent of the Legislature, the focus must be on the defendant's wrongful act, not the victim's response to it." (Ibid.)

In this case, while there was no evidence of force or threats of force, there was sufficient evidence of threatened hardship sufficient to coerce a young girl of ordinary susceptibilities and Alana's age into performing or acquiescing in acts that she would not have otherwise performed or acquiesced in. Defendant was the adult, the authority in charge in his own home, and the parent of Alana's friend, his son. There were enormous differences between defendant's and Alana's ages, sizes, and comprehension of the situation. Defendant threatened to tell Alana's mother and Alana's friends about the conduct, impliedly to get her in trouble or humiliate her, if Alana disclosed the touchings or did not continue to visit his house to submit to such touchings. The evidence of duress was sufficient to support the convictions on counts 2 through 4. C. Prosecution of Count 5 Not Barred by the Statute of Limitations or Due Process

Defendant claims that count 5 was charged and prosecuted in violation of the statute of limitations and due process. But defendant acknowledges that applicable statutes of limitations have been repeatedly amended to extend the time to prosecute a lewd act in violation of section 288, subdivision (a). The People assert that prosecution of count 5 of the amended information related back to the date of filing the original information and that prosecution of count 5 as amended was timely under various extensions of the statute of limitations.

In his opening brief, defendant mentions a number of statutes, but he fails to develop any argument based on specific statutes of limitations to show that prosecution of count 5 was time barred because the applicable statute of limitations had expired before the information was filed. In the absence of any meaningful legal argument and supporting legal authority, we deem such claim waived. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); Cal. Rules of Court, rules 8.204(a)(1)(B) & (C), 8.360(a)⁷.)

7 All further references to rules are to the California Rules of Court. Rule 8.204(a)(1) provides in pertinent part: "Each brief must: [¶] . . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and [¶] (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. . . ."

In any case, the applicable law at the earliest possible time of the offense alleged in count 5 as amended permitted prosecution of certain sex offenses, including a violation of section 288, within 10 years from the commission of the offense. (Stats. 2003, ch. 152, § 1, p. 977 [former § 803, subd. (i)]; see Stats. 2000, ch. 649, § 2.5, p. 4283 [former §290, subd. (a)(2)(A)]; see also In re White (2008) 163 Cal.App.4th 1576, 1580.) Defendant recognizes that the 2004 enactment of section 801.1 (relocating the statutory authorization of the 10-year limitation period) permitted prosecution of violations of certain sex offenses, including any violation of section 288, within 10 years after their commission, provided prosecution was not already time barred. (See Stats. 2004, ch. 368, § 1, p. 3470; Stats. 2000, ch. 649, § 2.5, p. 4283; see also Stogner v. California (2003) 539 U.S. 607, 632-633 ["a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution"].) Defendant also acknowledges that subsequent amendments of section 801.1 extended the applicable statute of limitations for prosecution of certain sex offenses, including any violation of section 288, when the victim was under 18 years of age. (See Stats. 2005, ch. 479, § 2, pp. 3790-3791 [prosecution may be commenced any time prior to the victim's 28th birthday]; Stats. 2014, ch. 921, § 1, p. 5998 [prosecution may be commenced any time prior to the victim's 40th birthday].) Defendant has not established that count 5 as amended was barred by the applicable statute of limitations.

As we have concluded, the trial court properly permitted the amendment of count 5 to reflect that the offense was committed during the period when Zoe was between five and seven. Even if the offense was committed on the earliest possible date within that period, defendant has not shown the original information, which was filed on April 17, 2014, was not timely filed. "[I]f the prosecution amends to correct a date, that will not prevent the amended pleading from relating back to the original: 'The amendment of an information in a criminal case by merely changing the alleged date of the offense charged, as was done in this case, like any other amended pleading, relates back to the date of the original filing of the information, and has the effect of tolling the running of the statute of limitations from the date of the filing of the original information. [Citations.]' (In re Davis (1936) 13 Cal.App.2d 109, 113-114.)" (People v. Ortega (2013) 218 Cal.App.4th 1418, 1429-1430.)

As to the due process contention, defendant argues that "[t]he delay in and of itself prevented any meaningful defense because the allegations were so sparse and vague and [that] by the [alleged victim's] own admission, she could not be too sure of anything . . . ." He asserts that he "had nothing to dispute and no means with which to defend his liberty."

Ordinarily, " 'the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.' " (United States v. Marion (1971) 404 U.S. 307, 322 (Marion); see People v. Jones (2013) 57 Cal.4th 899, 921.) But due process might provide a basis for dismissing an information if a defendant showed that prosecutorial delay before the filing of the charging document prejudiced the defense or the right to a fair trial. (See Marion, supra, at pp. 325-326.)

"Due process guarantees that a criminal defendant will be treated with 'that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.' Lisenba v. California, 314 U.S. 219, 236 (1941)." (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872.) The United States Supreme Court has recognized that the "[p]assage of time . . . may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself." (Marion, supra, 404 U.S. at p. 321, fn. omitted.) The right of due process "safeguard[s] a criminal defendant's interest in fair adjudication by preventing unjustified delays [in the filing of charges] that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence [Citation.]" (People v. Jones, supra, 57 Cal.4th at p. 921.)

" 'A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time. [Citation.] Prejudice to a defendant from precharging delay is not presumed. [Citations.] . . . [I]f the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. [Citations.]' [Citation.]" (People v. Jones, supra, 57 Cal.4th at p. 921, italics added.)

Here, defendant has not demonstrated actual prejudice resulting from the elapse of time between the alleged crime and prosecution. (Cf. People v. Cordova (2015) 62 Cal.4th 104, 118-120 [cold case 1979 murder with no statute of limitations; initial murder complaint filed in December 2002].) The molestation occurred behind a closed door in defendant's bedroom. Any claim of prejudice is speculative since "[n]o reason exists to believe witnesses would have supplied exonerating, rather than incriminating, evidence, or any evidence at all." (Id. at p. 120.)

Defendant was able to present evidence in his defense. He could challenge the validity of Zoe's testimony due to the passage of time or her inability to recollect all the details. (See Evid. Code, § 780, subd. (c).) While a defendant may "seek to prove that the fading memory of a prosecution witness has . . . made a fair trial impossible" (People v. Hill (1984) 37 Cal.3d 491, 498), in this case Zoe's memories were not "too uncertain to permit adequate cross-examination on the particulars of the person who attacked [her]" (ibid.) or the particulars of defendant's conduct.

Furthermore, defendant has not affirmatively shown there was any undue governmental or prosecutorial delay in prosecuting the offense committed against Zoe. The felony complaint was filed in June 2013, not long after the initial police report in March 2013 concerning defendant's molestation of Alana, which prompted a police investigation leading to Zoe.

No due process violation has been established. D. Fresh Complaint Evidence

A defense motion in limine asserted that defendant was "entitled to a limiting instruction that the statement [of an extrajudicial complaint] is not introduced for the truth of the [matter] asserted and that the jury is to assign it whatever weight it feels it deserves . . . ." The motion indicated that fresh complaint evidence should be limited to (1) the name of the alleged victim, (2) the name of the alleged perpetrator, (3) the date and time of the complaint, and (4) the fact that the allegation was of a sexual nature.

The trial court ruled that "fresh complaint" testimony would be limited to the circumstances of the disclosure, who was present, the time of disclosure, and the alleged victim's physical manifestations. It indicated that any witness testifying about a fresh complaint should be apprised of the court's ruling.

Toward the beginning of Angela's testimony, the prosecution asked whether Alana had brought up eating issues, and Angela replied that Alana had mentioned doing some research on it. Defense counsel then objected on hearsay grounds, and the court overruled the objection, noting that it was fresh complaint evidence. At the end of Angela's testimony, to explain the "gap" in her testimony, the trial court told the jury that its order precluded her from testifying about the details of Alana's disclosure to her because the jury would be hearing Alana's testimony.

Defendant maintains that the trial court did not properly apply the fresh complaint doctrine, that the court failed to enforce its pretrial order as to fresh complaint evidence, and that prejudicial evidence was admitted in violation of that doctrine and Evidence Code section 352.

People v. Brown (1994) 8 Cal.4th 746 (Brown) abolished the common law fresh complaint doctrine that had been applicable in sexual offense cases in California. (Id. at p. 749.) In Brown, the California Supreme Court determined that "under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred."⁸ (Id. at pp. 749-750, see id. at p. 763.) Brown clarified, however, that relevant fresh complaint evidence was still subject to exclusion under Evidence Code section 352. (Brown, supra, at p. 763.)

8 Brown also recognized that "extrajudicial statements also may be admissible for a hearsay purpose (i.e., to prove the truth of the content of the statement) under an exception to the hearsay rule (e.g., as a spontaneous declaration [Evid. Code, § 1240] or as evidence of prior identification [Evid. Code, § 1238]), provided the requirements for their admission under that exception are satisfied in the particular case." (Brown, supra, 8 Cal.4th at p. 749, fn. 1.)

Defendant now challenges Angela's testimony, asserting that "[p]ages of her testimony about church groups, her credentials, and so on was irrelevant." He claims that "[m]ost of [her] testimony . . . was barred by Evid. Code section 352 and Brown." He also states that "[t]he same applies to the mothers, the police officers and the recordings."

Insofar as defendant failed to make timely and specific evidentiary objections in the court below, they were forfeited. (See Evid. Code, § 353. subd. (a).) Likewise, any claim that the prosecutor was violating the trial court's pretrial rulings on fresh complaint evidence was forfeited because defense counsel failed to timely and specifically object and request an admonition. (See People v. Clark (2016) 63 Cal.4th 522, 577.)

Insofar as defendant might be challenging the overruling of a specific objection, defendant was required to "cite to the record showing exactly where the objection was made. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406 (S.C.); rules 8.204(a)(1)(C), 8.360(a).) As the reviewing court, it is not our role to hunt through the record for objections (see S.C., supra, at pp. 406-407) or to make an argument for defendant. We deem waived any claim of trial court error in overruling a specific objection related to fresh complaint evidence. (See Stanley, supra, 10 Cal.4th at p. 793; rules 8.204(a)(1)(B) & (C), 8.360(a).) E. Ineffective Assistance of Counsel Claim

Defendant asserts that his trial counsel was so ineffective that he was denied a fair trial.

1. Governing Law

To establish ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); see id. at p. 700 ["Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim"].) "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Id. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) Counsel must be given "wide latitude . . . in making tactical decisions." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)

As to prejudice component of an ineffective assistance of counsel claim, the requisite showing is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 104.)

"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses [that] counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.) "[E]xcept in those rare instances where there is no conceivable tactical purpose for counsel's actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal. [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 972.)

2. Fresh Complaint Evidence

Without any citation to the record or legal authority, defendant maintains that defense counsel's failure to object to the fresh complaint doctrine "opened the floodgates to cumulative evidence that served the prosecution but did not go to the charges, including testimony by [Angela], the mothers, repetitive evidence of the reports via the officers, recordings, and transcripts, and inflammatory photos that serve[d] only to evoke jury empathy and bias." As discussed above, the fresh complaint doctrine was abolished in Brown and evidence of a victim's disclosure is now admissible or excluded under generally applicable evidentiary rules. (Brown, supra, 8 Cal.4th at pp. 749-750, 763.) Defendant has failed to identify, by specific citation to the appellate record, the particular testimony to which his counsel should have objected, failed to specify the evidentiary objection that he claims should have been interposed to particular testimony, and failed to make any legal argument to establish the validity of such objection. Consequently, we deem any ineffective assistance claims based on his counsel's alleged failures to make such evidentiary objections forfeited. (Stanley, supra, 10 Cal.4th at p. 793; see rules 8.204(a)(1)(B) & (C), 8.360(a).)

In any event, a counsel's "decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence. [Citations.]" (People v. Freeman (1994) 8 Cal.4th 450, 490-491.) Further, "[d]efendant has not shown that counsel was asked for and failed to provide an explanation for not objecting to this evidence, or that there could be no satisfactory explanation for counsel's decision not to object." (People v. Cunningham (2001) 25 Cal.4th 926, 1037.)

Further, defendant has not demonstrated that, if defense counsel had interposed evidentiary objections to fresh complaint evidence, it is reasonably probable that the court would have sustained them and that he would have obtained a more favorable result. Since Alana and Zoe testified at trial, the jury was able hear their testimony, observe their demeanor, consider any discrepancies between their earlier statements and their trial testimony, and evaluate their credibility. It impliedly found them credible.

3. Zoe's Testimony that Defendant Exposed His Penis and Her Cross-Examination

Defendant also argues, again without any citation to the record, that "the defense did not have sufficient time to investigate and/or modify the cross-examination questions" after Zoe testified that he pulled his penis out of his pants. This was not a new claim. At the April 11, 2014 preliminary examination, more than a year before trial, Zoe testified that defendant took his penis out of his pants before putting his fingertips down her pants. The same defense counsel represented defendant at the preliminary examination and at the trial. He had no basis for asking for a continuance or the striking of that trial testimony. The appellate record does not demonstrate that defense counsel inadequately investigated Zoe's claim for the purpose of showing her "lack of memory or [the] inaccuracy" of the claim.

Defendant generally complains about the extent and effectiveness of Zoe's cross-examination, without any citation to the record, and he accuses defense counsel of being "eager to release [her] to Disneyland . . . ." "Although in extreme circumstances cross-examination may be deemed incompetent [citation], normally the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make. [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 746.) Counsel extensively cross-examined Zoe. His thanking of Alana for her patience and his telling her to have fun at Disneyland, where she was going the next day, at the end of her cross-examination can be readily interpreted as an effort to avoid being viewed by the jury as mistreating an alleged victim. On appeal, defendant has failed to show that defense counsel acted unprofessionally with respect to Zoe's testimony.

4. Failure to Call Other Neighborhood Children

In his opening argument, defense counsel noted that Detective Lynch conducted a "very thorough investigation" and interviewed other neighborhood children, including "three other young girls" who also "lived on the same street" and who indicated defendant had not touched them inappropriately. Defendant complains that defense counsel failed to call those neighborhood children as witnesses for the defense.

Defense counsel made no suggestion that any of the other neighborhood children would be called to testify. In any event, "[i]neffective assistance of counsel is not demonstrated simply because the evidence at trial does not mirror counsel's opening statement. 'Forgoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case.' (People v. Stanley (2006) 39 Cal.4th 913, 955.)" (People v. Carrasco (2014) 59 Cal.4th 924, 987.)

Defendant has failed to show that defense counsel made an unreasonable tactical choice not to call other neighborhood children as witnesses at trial, that their testimony would have been admissible and withstood objection had they been called as witnesses (see e.g. Evid. Code, §§ 210, 350, 352, 1101, subd. (a); 1102; cf. People v. McAlpin (1991) 53 Cal.3d 1289, 1305-1310), or that, had their testimony been admitted, there is a reasonable probability of a more favorable outcome. No ineffective assistance of counsel has been shown.

5. Argument on Behalf of Defendant

In closing argument, defense counsel suggested various reasons to discredit the victims' testimony and find a reasonable doubt, including the alleged victims' inconsistent statements; their inability to remember; the unreliability of their supposed memories due to various factors, including their ages at the time of the alleged incidents, children's susceptibility to outside influences, and the passage of time; and the "leading, suggestive interview" of Alana by Officer Harris. Defense counsel further argued that in any event, the acts to which the victims testified, were not forcible and there was no duress. Defense counsel emphasized that CSAAS applied in a clinical, therapeutic setting and that it was not meant to be used in a courtroom.

Defendant attacks defense counsel's opening and closing statements as "less than zealous" and as failing to expressly assert that any count was not proven and to declare his innocence. Without any citation to the record, defendant complains that defense counsel "argued the delay raised credibility issues of the witnesses instead of underscoring how [he] could not present a meaningful defense because the allegations were so sparse and vague and by [Zoe's] own admission, she could not be too sure of anything, after so much time passed and due to her prior ages."

First, it may be improper to express an opinion as to the defendant's innocence during argument since jurors may infer that it is based on knowledge outside of the evidence. (See People v. Tyler (1991) 233 Cal.App.3d 1456, 1459; Rules of Prof. Conduct, rule 5-200(E).) Second, the deficient performance standards "apply with particular force at closing argument because, as [the California Supreme Court has] recognized, '[t]he decision of how to argue to the jury after the presentation of evidence is inherently tactical . . . .' (People v. Freeman (1994) 8 Cal.4th 450, 498.)" (People v. Gamache (2010) 48 Cal.4th 347, 391.) "[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage." (Yarborough v. Gentry (2003) 540 U.S. 1, 5-6.) "[I]n light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client's innocence. [Citations.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1060-1061.)

Defendant has not shown that defense counsel's arguments in opening or closing were unreasonable under professional norms.

6. Instruction of Jury Regarding Expert Testimony

Defendant criticizes defense counsel for failing to ensure that the trial court gave the limiting instruction on CSAAS evidence prior to Wolf's testimony, as the court indicated it would prior to trial. He also asserts that no such instruction was given "prior to or after examination." Defendant maintains that, as a result, he suffered prejudice because "at the close of trial the jury was left to work out the subtle distinction of how the alleged victims' behavior was 'not inconsistent' with someone having been molested rather than 'consistent with' having been molested."

In fact, the trial court instructed the jury immediately following Wolf's testimony as follows: " 'You've heard testimony from Ms. Wolf regarding child sexual abuse accommodation syndrome. Ms. Wolf's testimony about child sexual abuse accommodation is not evidence that defendant committed any of the crimes charged against him.' " The court then interposed a comment: "You heard . . . her testify it's [not] a diagnostic tool." The court then continued instructing as follows: " 'You may consider this evidence only in deciding whether or not Alana Doe and Zoe Doe's conduct was not inconsistent with conduct of someone who has been molested in evaluating the believability of their testimony.' " The court then stated: "So the evidence is background information. They're going to testify. And you, of course, are the finders of fact. You'll decide whether that testimony is applicable or helpful . . . in evaluating their . . . testimony." A written copy of the instruction (CALCRIM No. 1193) was provided to the jury with the other instructions given to the jury before deliberation.

"Jurors are routinely instructed to make similarly fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions. [Citation.]" (People v. Yeoman (2003) 31 Cal.4th 93, 139.) "[T]he presumption that jurors understand and follow instructions [is] '[t]he crucial assumption underlying our constitutional system of trial by jury.' (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; see Francis v. Franklin [(1985)] 471 U.S. 307, 324, fn. 9.)" (Ibid.) In the absence of any basis in the record for rejecting that presumption or for finding that jurors did not follow the CALCRIM No. 1193 instruction because of its timing, we conclude that defendant has not demonstrated ineffective assistance of counsel.

7. Failure to Present Testimony of Defense Expert

Defendant appears to claim that defense counsel provided ineffective assistance by failing to call defense experts to dispute Wolf's CSAAS testimony and to provide "information about how memories can be unconsciously formed explaining the witnesses could lie inadvertently." "[T]he appellate record does not disclose the existence, availability, or relative weight of such evidence" (People v. Lewis (2001) 25 Cal.4th 610, 675) or defense counsel's reasons for such omissions.

"[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello [(1997)] 15 Cal.4th 264), where relevant facts and circumstances not reflected in the record on appeal . . . can be brought to light . . . ." (People v. Snow (2003) 30 Cal.4th 43, 111.) "Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus." (People v. Pope (1979) 23 Cal.3d 412, 426, abrogated on another ground in People v. Berryman (1993) 6 Cal.4th. 1048, 1081, fn. 10.) When an ineffective assistance of counsel claim, such as this one, rests on facts outside the record, the claim must be raised on habeas corpus. (See People v. Seaton (2001) 26 Cal.4th 598, 643; see People v. Williams (2013) 56 Cal.4th 630, 691.)

8. Failure to Bring Motion to Sever

Defendant claims that defense counsel acted incompetently by not bringing a motion to sever the trial of charges, arguing that counts 1 through 4 (involving Alana) were stronger than count 5 (involving Zoe). He argues that failure to bring a motion to sever allowed the weaker count 5 to be tried with stronger charges, which "made count 5 appear more serious and more probable," and made him subject to One Strike sentencing.

Section 954 provides in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts." (Italics added.) "Because it ordinarily promotes efficiency, joinder is the preferred course of action." (People v. Scott (2011) 52 Cal.4th 452, 469.) "In addition to preventing harassment, joinder avoids needless repetition of evidence and saves the state and the defendant time and money. [Citations.]" (Kellett v. Superior Court (1966) 63 Cal.2d 822, 826, fn. omitted; see Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218 (Acala).) Defendant is not disputing that joinder was statutorily permissible under section 954.

Different offenses are "connected together in their commission" (§ 954, subd. (a)) if there is a common element of substantial importance in their commission. (Alcala, supra, 43 Cal.4th at p. 1218.) "[T]he requirement of section 954 that offenses be 'connected together in their commission' may be satisfied even though 'the offenses charged "do not relate to the same transaction and were committed at different times and places . . . against different victims." ' [Citations.]" (Ibid.) Thus, "[t]he phrase regarding offenses 'connected together in their commission' under section 954 includes offenses that share a common element, such as the use of a defendant's home to commit the crime . . . . [Citation.]" (People v. Leney (1989) 213 Cal.App.3d 265, 269 (Leney).)

" 'Offenses of the same class are offenses which possess common characteristics or attributes.' [Citations.]" (People v. Landry (2016) 2 Cal.5th 52, 76.) Sex offenses against minor female victims certainly belong to "the same class of crimes or offenses" (§ 954). (See Leney, supra, 213 Cal.App.3d at p. 271; People v. Moore (1986) 185 Cal.App.3d 1005, 1008, 1013; People v. Lindsay (1964) 227 Cal.App.2d 482, 492; People v. Ross (1960) 178 Cal.App.2d 801, 805.)

But section 954 also provides that "the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." Thus, "[e]ven if charges are properly joined under section 954, the trial court retains discretion to try them separately, but '[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' (People v. Bean (1988) 46 Cal.3d 919, 938.)" (People v. Armstrong (2016) 1 Cal.5th 432, 455.)

"The party seeking severance has the burden to establish a substantial danger of prejudice requiring the charges to be separately tried. [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence of the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citation.] If evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, then such cross-admissibility ordinarily dispels any inference of prejudice. [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281-282.)

"[I]f evidence underlying the offenses in question would be 'cross-admissible' in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses. [Citations.]" (Alcala, supra, 43 Cal.4th at p. 1221.) Here, evidence of the charged offenses would have been cross-admissible in separate trials. (See Evid. Code, §§ 1101, subd. (b), 1108, subd. (a); see also People v. Villatoro (2012) 54 Cal.4th 1152, 1164; People v. Falsetta (1999) 21 Cal.4th 903, 911; People v. Ewoldt (1994) 7 Cal.4th 380, 401-403, superseded by statute in part as indicated in People v. Villatoro, supra, at p. 1163.)

It was a reasonable decision not to bring a motion to sever. Evidence of the offenses would have cross-admissible in separate trials. It was not apparent that a weak case had been joined with strong case or another weak case. Both girls had given accounts of what had occurred when they were alone with defendant at his home, and those claims had not been retracted. No offense was unusually inflammatory. Capital punishment was not at issue. Application of an alternate penalty under the One Strike law was not the type of undue prejudice sought to be avoided by severance under section 954.

For all the foregoing reasons, the trial court would not have abused its discretion by denying a motion to sever. Thus, defendant has not shown that it is reasonably probable that the trial court would have granted such a motion.⁹

9 The fact that the jury found defendant guilty of a lesser included offense to count 1 rather than the greater charged offense is an indication that the jury harbored no emotional bias against defendant due to joinder.

9. Conclusion

Defendant has failed to establish any instance of ineffective assistance of counsel. F. Alleged Brady Error

Defendant asserts that a Brady violation occurred when the prosecution failed to produce a police report concerning a digital penetration of Alana by a male adult other than defendant when she was teenager. He claims that the prosecution violated Brady by failing to disclose a "second report of illicit sexual behavior with an adult man . . . reported to [Angela] by [Alana]," which "might have exculpated him."

1. Background

In a motion to compel discovery, the defense sought an order compelling the prosecution to disclose a police report concerning an offense of unlawful sexual intercourse (§ 261.5) with Alana, who reportedly did not wish to prosecute the adult male involved. The prosecution subsequently sought a ruling precluding any reference at trial to the violation of section 261.5, which purportedly occurred when Alana was 16 years old and involved a young adult male. The prosecution reported that the police report (identified by number) had been turned over "to the defense in the abundance of caution." In its written motions in limine, the defense requested that the "recorded statement" obtained "by the investigating officer," which had been mentioned in the police report, "be provided to the Defense."

At the hearing on parties' in limine motions, defense counsel indicated that Alana and the young man had "engaged in what was apparently a consensual sexual relationship." He said that he would "like to have the recorded statement that was referred to in the [police] report . . . to see if there is any further evidence that would be relevant and potentially impeachable [sic]." The trial court found the evidence irrelevant and "highly prejudicial" under Evidence section 352 because it "related to the sexual history" of the alleged victim. It ruled, without prejudice to a subsequent motion, that counsel could not refer to the section 261.5 matter during voir dire of potential jurors or at trial.

Following conviction, defendant brought a motion for a new trial, claiming there had been a Brady violation among other errors. The motion acknowledged that the prosecution had sent a letter, which was dated March 10, 2015 and referred to an enclosed Bates-stamped police report, to defense counsel's office. Both the letter and a 10-page police report (reflecting that it had been printed on October 6, 2014), were attached to the defense motion for a new trial. The motion stated that it "appear[ed] [that the report] was not provided until just prior to trial."

At the hearing on the motion for a new trial, the prosecution opposed the motion and represented to the court that it had twice before trial (by letter dated October 9, 2014 and by letter dated March 10, 2015) provided the police report to defendant's prior counsel. Defendant's new counsel acknowledged that the letter and report were received in March 2015, rather than "the day before trial as [she] wrote in [the moving] papers." The trial court denied the motion for a new trial.

2. Analysis

Under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny, defendant was entitled to have the prosecution disclose favorable material evidence, including evidence impeaching Alana's credibility, as a matter of due process. (See Kyles v. Whitley (1995) 514 U.S. 419, 433-435, 438; United States v. Bagley (1985) 473 U.S. 667, 676; United States v. Agurs (1976) 427 U.S. 97, 107, 112-113; Giglio v. United States (1972) 405 U.S. 150, 154; Brady, supra, at p. 87.)

On appeal, defendant has not shown, by specific citation to the appellate record, that the prosecution failed to disclose the police report before trial or that the report was material evidence that was either exculpatory or impeaching. The sexual conduct apparently occurred when Alana was in high school, many years after the alleged sex offenses at issue in this case. The police report does not suggest that Alana made a false accusation. Defendant has not established that the prosecution withheld material evidence in violation of Brady. G. Cruel and/or Unusual Punishment

Defendant argues that the 75-years-to-life sentence constitutes cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution.¹⁰ He suggests that his punishment was grossly disproportionate because he was a first-time felony offender who was sentenced to a "virtual life without parole" for "inappropriately touching two girls."

10 The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." California Constitution, article I, section 17, states in pertinent part that "[c]ruel or unusual punishment may not be inflicted . . . ." (Italics added.) The Eighth Amendment's prohibition against cruel and unusual punishments is applicable to the States through the Fourteenth Amendment's due process clause. (Graham v. Florida (2010) 560 U.S. 48, 53 (Graham).)

"The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' [Citation.]" (Graham, supra, 560 U.S. at p. 59.) When the length of a sentence is challenged, "the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive." (Id. at p. 59.) In "determining whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime" (id. at p. 60), "[a] court must begin by comparing the gravity of the offense and the severity of the sentence. [Citation.]" (Ibid.) "The gross disproportionality principle reserves a constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538 U.S. 63, 77.)

In Graham, the United States Supreme Court observed: "A leading case is Harmelin v. Michigan, 501 U.S. 957 (1991), in which the offender was sentenced under state law to life without parole for possessing a large quantity of cocaine. A closely divided Court upheld the sentence. The controlling opinion concluded that the Eighth Amendment contains a 'narrow proportionality principle,' that 'does not require strict proportionality between crime and sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to the crime.' Id., at 997, 1000-1001 (KENNEDY, J., concurring in part and concurring in judgment). Again closely divided, the Court rejected a challenge to a sentence of 25 years to life for the theft of a few golf clubs under California's so-called three-strikes recidivist sentencing scheme. Ewing v. California, 538 U.S. 11 (2003); see also Lockyer v. Andrade, 538 U.S. 63 (2003). The Court has also upheld a sentence of life with the possibility of parole for a defendant's third nonviolent felony, the crime of obtaining money by false pretenses, Rummel v. Estelle, 445 U.S. 263 (1980), and a sentence of 40 years for possession of marijuana with intent to distribute and distribution of marijuana, Hutto v. Davis, 454 U.S. 370 (1982) (per curiam)." (Graham, supra, 560 U.S at pp. 59-60.) As the court has noted, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle, supra, at p. 272.)

" '[I]n the rare case in which [this] threshold [gross disproportionality] comparison [under the Eighth Amendment] . . . leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual. [Citation.]" (Graham, supra, 560 U.S. at p. 60.)

Similarly, a punishment may violate California's constitutional prohibition against cruel or unusual punishments (Cal. Const., art. I, § 17) if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); see People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38 (Dillon) abrogated on another ground in People v. Chun (2009) 45 Cal.4th. 1172, 1185-1186.) "A petitioner attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425, 431, 436.)"¹¹ (In re Nunez (2009) 173 Cal.App.4th 709, 725.)

11 Lynch recognized three approaches for demonstrating unconstitutional disproportionality. The first approach is to examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425.) "The second technique . . . is to compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." (Id. at p. 426.) The third technique is "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." (Id. at p. 427.)

A punishment is constitutionally impermissible "if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender. (In re Lynch (1972) 8 Cal.3d 410.)" (Dillon, supra, 34 Cal.3d at p. 450; see id. at p. 478.) With respect to the nature of the offense, courts consider "the offense in the abstract" and "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Id. at p. 479.) With respect to the nature of the offender, the disproportionality inquiry "focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)

" 'Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty "out of all proportion to the offense" [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.' ([Lynch, supra, 8 Cal.3d] at pp. 423-424.)" (Dillon, supra, 34 Cal.3d at p. 478; see Solem v. Helm (1983) 463 U.S. 277, 290 & fn. 16; see also People v. Wingo (1975) 14 Cal.3d 169, 174.)

Section 667.61's alternate penalty provision set forth in subdivision (b) applies to a defendant who "has been convicted in the present case or cases of committing an offense specified in [section 667.61,] subdivision (c) against more than one victim" (§ 667.61, subd. (e)(4) [formerly (e)(5)]) and mandates an alternate sentence of 15-years-to-life term for each such offense where a multiple victim circumstance allegation is found true.¹² "[A] sentence which is not otherwise cruel and unusual" does not become "so simply because it is 'mandatory.' [Citation.]" (Harmelin v. Michigan, supra, 501 U.S. at p. 995 [mandatory term of life in prison without possibility of parole imposed on first-time offender for possession of 672 grams of cocaine].)

12 In 2006, section 667.61 was amended to require consecutive sentencing for certain offenses, including a lewd or lascivious act in violation of section 288, subdivision (b), and sexual penetration in violation of section 289, subdivision (a), resulting in a conviction under that section if the crimes involve separate victims or involve the same victim on separate occasions, as defined in subdivision (d) of section 667.6. (Stats. 2006, ch. 337, § 33, pp. 2639. 2641 [former § 667.61, subd. (i)]; Voter's Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 12, p. 131 [same].)

"[P]ersons convicted of sex crimes against multiple victims within the meaning of section 667.61, subdivision (e)(5) 'are among the most dangerous' from a legislative standpoint. [Citation.] The One Strike scheme therefore contemplates a separate life term for each victim attacked on each separate occasion. [Citations.]" (People v. Wutzke (2002) 28 Cal.4th 923, 930-931 (Wutzke).)

Section 667.61 reflects legislative "intolerance toward child sexual abuse . . . ." (Wutzke, supra, 28 Cal.4th at p. 931.) "[S]ection 667.61 ensures serious sexual offenders receive long prison sentences whether or not they have any prior convictions. (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, pp. 8570-8572.) According to a general statement of purpose in the legislative history, the targeted group preys on women and children, cannot be cured of its aberrant impulses, and must be separated from society to prevent reoffense. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 26 (1993-1994 1st Ex. Sess.) as introduced Feb. 2, 1994, pp. 9-10.)" (Id. at pp. 929-30, fn. omitted.)

No inference of gross disproportionality arises from a comparison of the crimes committed by defendant to the sentence imposed. Defendant was an adult with children of his own. He took advantage of the two victims, who came to his home to play with his children and were vulnerable because they were young girls and he was a trusted adult in the neighborhood. He abused his authority as an adult and a parental figure, and the trust of the victims' families who allowed the victims to play at his home, to perpetrate sexual offenses against the girls while he was alone with each of them. Years later, Alana was exploring whether she had an eating disorder attributable to defendant's molestations of her and Zoe mistrusted, and was discomforted by, men because of her experience with defendant.

Defendant compares his punishment to the 25-years-to-life punishment for some murders (§ 187, 190), implying that murder is a more serious crime. Defendant has not shown that a 15-years-to-life term, with a shorter minimum term, is disproportionate to a single sex offense of which he was convicted under the circumstances. He also baldly asserts that "[t]wo murders, aggravated mayhem and rape have a base term together of 57 or less years to life." This multiple-offense scenario fails to demonstrate that defendant's aggregate sentence was grossly disproportionate to his five offenses.¹³

13 Aggravated mayhem alone is "a felony punishable by imprisonment in the state prison for life with the possibility of parole." (§ 205)

Insofar as defendant compares his sentence to the punishment imposed in other cases, which he asserts involved more egregious circumstances than this case, he fails to show unconstitutional disproportionality. Defendant committed multiple sex offenses on different dates and offended against more than one child in his home, and those circumstances suggest that he was a predatory, repeat offender. His punishment neither shocks the conscience nor offends fundamental notions of human dignity. Defendant has not demonstrated that his punishment is cruel and/or unusual.¹⁴ (Cf. People v. Andrade (2015) 238 Cal.App.4th 1274, 1309-1310 [an aggregate state prison term of 195 years to life, consisting of 13, consecutive 15-years-to-life terms imposed pursuant to section 667.61 based on the multiple victim circumstance, not cruel and/or unusual]; Retanan, supra, 154 Cal.App.4th at pp. 1230-1231 [total state prison term of 135 years to life, consisting of nine, consecutive 15-years-to-life terms imposed pursuant to section 667.61 based on the multiple victim circumstance, not cruel and/or unusual]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 532 [application of section 667.6 resulting in "[c]onsecutive prison terms totaling 129 years imposed as punishment for the [defendant's] commission of 25 separate serious [sex] offenses [against his stepdaughter] is not cruel or unusual punishment"].) H. Alleged Cumulative Error

14 Defendant does not compare his punishment with the punishment prescribed for the same offenses in other jurisdictions. "[D]efendant makes no effort to compare his sentence . . . with punishments in other states for the same offense, which we take as a concession that his sentence withstands a constitutional challenge on [that] basis. (People v. Crooks (1997) 55 Cal.App.4th 797, 808 [defendant bears burden of establishing disproportionality].)" (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan).) --------

Defendant implies that the cumulative effect of the errors in this case deprived him of a fair trial and due process.

"Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 844-845.) But in this case, since we have found no error, defendant's claim of prejudicial cumulative error necessarily fails.

DISPOSITION

The judgment is affirmed.

/s/_________

ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.