Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a Judgment of the Superior Court of Los Angeles County. Ct. No. VA097587, John A. Torribio, Judge.
Law Offices of James Koester and James Koester for Defendant and Appellant Jose Chavez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Susan D. Martynec and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant Jorge Ricardo Chavez appeals his conviction of one count of a lewd act upon a minor (Pen. Code, § 288, subd. (a)). Defendant contends that the trial court (1) violated the ex post facto clause by instructing the jury with the statute of limitations imposed by section 803, subdivision (f)(1), which was not in effect at the time of the crimes; (2) erred in sentencing him under the 2007 amendments to the Determinate Sentencing Law; and (3) erred in instructing with CALCRIM No. 1191. We affirm.
All statutory references herein, unless otherwise noted, are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 21, 2007, defendant was charged in a one-count indictment of committing a lewd and lascivious act upon his nephew, I.R., during the period March 16, 1996 to March 15, 1998 (Pen. Code, sec. 288, subd. (a)). The information charged under section 803, subdivision (f)(1) that on May 17, 2006, the victim reported the crime to a law enforcement agency, that while under the age of 18 he was the victim of a sexual crime, and that there was an additional victim to corroborate I.R.’s allegation.
The prosecution’s case at trial principally consisted of the testimony of the victim, I.R., and his siblings Y.R. and A.R.
Y.R., who was 14 at the time of trial, testified that defendant is her uncle. When she was six or seven years old, she went to his house, where she slept in her aunt and uncle’s room between them in their bed. She woke up when she felt defendant rubbing his hand under the bottom of her pajamas on her private area. His hand was inside her underwear, but he did not insert his fingers in her vagina. Y.R. pretended that she was starting to wake up and moved around. Defendant stopped. She did not tell anyone what happened.
On another occasion, when she was 10 or 11 years old, she and her little brother A.R. were at defendant’s house sleeping overnight on a sofa bed in the living room. In the morning, defendant was on his way to work, and stopped next to the sofa and put his hand under her brother’s shirt and started rubbing. Y.R. pretended to wake up. Defendant stopped and left for work. Y.R. knew that defendant’s behavior was wrong.
About two years later, she was supposed to go to defendant’s house, but she did not want to. Y.R. told her little brother A.R. what had happened to her, and that she had seen what happened to him. A few hours later, her little brother told their mother about the incident. Several days after that, in May 2006, the police got involved.
A.R., who was age 12 at the time of trial, testified that he did not recall the incident on the living room sofa bed at defendant’s house. He did not recall that defendant ever touched him inappropriately.
I.R., who was 21 at the time of trial, testified that he was 10 or 11 years old in 1996, and would go to defendant’s house to sleep over. He liked to play video games at defendant’s house. He and defendant would often wrestle in his uncle’s bedroom, and his uncle would throw him on the bed. When they first started wrestling, they had their clothes on. Later, they would wrestle in the nude. Defendant would throw him on the bed and cup his mouth around I.R.’s genital area. I.R. asked defendant why he was spitting on him after I.R. saw saliva on his penis.
I.R. could not recall how many times this happened, and he never asked defendant to stop. Some time later, this type of wrestling stopped; they continued to engage in activity that was less sexual, and the conduct continued until I.R. was 17. I.R. did not tell anyone until he told his mother when he was 20 years old after Y.R. brought up defendant’s behavior.
Cecilia Valozzi, a detective with the Los Angeles Police Department’s special victims bureau, testified the statute of limitations for the charged offense is eight years. The allegations were made in May 2006, and the incidents alleged occurred between March 1986 and March 1998. The complaint was filed within one year of the report to police.
Defendant did not present a defense.
The jury was instructed pursuant to section 803, subdivision (f)(1) that the allegations regarding extension of the limitations period must be established by a preponderance of the evidence. The jury found defendant guilty, and found true the allegations supporting application of the extension of statute of limitations.
Pursuant to the instruction, the jury was admonished that section 803, subdivision (f) required them to find (1) the crime was reported to law enforcement and a complaint was filed within one year of the date of the crime being reported, (2) the statute of limitations had expired as to the crime, (3) the crime involved substantial sexual conduct, and (4) there was independent corroboration of the crime.
The court sentenced defendant, who had no prior convictions, to the upper term of eight years, noting that there were multiple victims, although the charges related to only one victim.
DISCUSSION
I. Lessening The Burden Of Proof To Obtain A Conviction Puts Section 803, Subdivision (f) Squarely Within The Fourth Calder Category, and Violates the Ex Post Facto Clause.
Defendant argues that the trial court violated the constitutional prohibition against ex post facto laws by applying section 803, subdivision (f), which imposed different requirements at the time of the crimes, to establish that the statute of limitations had not run on his offense. (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9; Carmell v. Texas (2000) 529 U.S. 513 (Carmell).) He contends the current version applies a preponderance of the evidence standard to independent corroboration, while the version in effect at the time of the crimes mandated a clear and convincing standard of proof for corroboration, thereby lessening the prosecution’s burden. He argues the error is structural, requiring reversal. (Sullivan v. Louisiana (1993) 508 U.S. 275.)
Stats. 2005, chapter 479 (S.B. 111), rewrote subds. (f) and (g) as subd. (f). The relevant portion of subdivision (f) lowered the quantum of proof to preponderance of the evidence from the clear and convincing standard of former subdivision (g) for victims under 21 at the time of the report.
The relevant portions of former section 803, subdivision (g) in effect in 1998 provided that: “(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5. [¶] (2) This subdivision applies only if both of the following occur: [¶] (A) The limitation period specified in Section 800 or 801 has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim’s allegation. . . .”
A. Carmell v. Texas.
Article I, section 10 of the United States Constitution prohibits states from enacting any ex post facto laws. “[O]ur best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43 (Collins).) “[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” (Weaver v. Graham (1981) 450 U.S. 24, 29.) In Calder v. Bull (1798) 3 U.S. (3 Dall.) 386 (Calder), the Supreme Court set forth four types of prohibited ex post facto laws: (1) laws “declaring acts to be treason, which were not treason, when committed,” (2) laws “inflict[ing] punishments, where the party was not, by law, liable to any punishment,” (3) laws inflicting “greater punishment than the law annexed to the offense,” and (4) laws violating the rules of evidence by permitting lesser evidence to suffice as proof. (Id. at pp. 389-390.)
The United States Constitution bars the passage of ex post facto laws by the federal government (art. I, § 9) and by state governments (art. I, § 10). The California Constitution, article I, section 9 also bars the Legislature from enacting ex post facto laws. Because the analysis is the same under both Constitutions (People v. Frazer 1999) 21 Cal.4th 737, 754, fn. 15) we refer simply to the “ex post facto clause.” (People v. Callejas (2000) 85 Cal.App.4th 667, 669, fn. 3.)
Carmell revisited Calder’s fourth category, which specifically prohibited “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” (Calder, supra, 3 U.S. at p. 390.) Carmell addressed an amended statute that permitted conviction of certain sexual offenses against minors on the victim’s uncorroborated testimony for the victims under age 18, while the previous statute required corroboration for victims under 14. The trial court had found no ex post facto violation because the amended statute merely removed existing restrictions upon the competency of certain classes of persons as witnesses and as a result constituted a rule of procedure, relying on Hopt v. Utah (1884) 110 U.S. 574, 590. (Carmell, supra, 529 U.S. at p. 520.) Carmell conducted a lengthy review of ex post facto precedent and concluded that the Texas statute was squarely within Calder’s fourth category because it authorized a conviction on less evidence than previously required. (Id. at p. 531.) “A law reducing the quantum of evidence required to convict an offender is as grossly unfair as . . . retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof. . . . There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.” (Id. at pp. 532-533.)
The statute in effect at the time of the offense provided that “A conviction under Chapter 21, Section 22.011 [sexual assault], or Section 22.021 [aggravated assault], Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The requirement that the victim inform another person of an alleged offense does not apply if the victim was younger than 14 years of age at the time of the alleged offense.” (Tex. Code Crim. Proc., art. 38.07 (Acts 1983, 68th Leg., p. 5317, ch. 977 § 7 eff. Sept. 1, 1983).)
In reaching its result, Carmell declined to view the Texas statute as a rule solely affecting the admissibility and competency of witnesses. Instead, because both versions of the law at issue found the victim’s testimony competent, Carmell inferred that the amendment altered the sufficiency of evidence to meet the state’s burden of proof -- a change which favored the prosecution. (Carmell, supra, 529 U.S. at pp. 544-546.) “[A] sufficiency of the evidence rule resonates with the interests to which the Ex Post Facto Clause is addressed in a way that a witness competency rule does not. . . . The elements of unfairness and injustice in subverting the presumption of innocence are directly implicated by rules lowering the quantum of evidence required to convict.” (Id. at p. 546.) Therefore, the “relevant question is whether the law affects the quantum of evidence required to convict. . . .” (Id. at p. 551.) Carmell noted that “We do not mean to say that every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto clause. Ordinary rules of evidence, for example, do not violate the Clause. . . . [S]uch rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.” (Carmell, supra, 521 U.S. at p. 533, fn. 23.)
Although the statute before it addressed the type of evidence require to convict a defendant, Carmell was adamant that “we think there is no good reason to draw a line between the laws that lower the burden of proof and laws that reduce the quantum of evidence necessary to meet that burden; the two types of laws are indistinguishable in all meaningful ways relevant to concerns of the Ex Post Facto Clause.” (Id. at p. 541.)
B. Section 803, Subdivision (f)(1) As Applied to Defendant Violates the Ex Post Facto Clause.
Here, section 803 lowers the burden of proof rather than expressly changing the type or amount of admissible evidence. Section 803, subdivision (f) expressly reduces the amount of proof to establish applicability of the extended statute of limitations, bringing it within the reach of the fourth category of Calder. (Carmell, supra, at p. 530.)
Like the statute in Carmell, which addressed the requirements of witness testimony, section 803, subdivision (f) is not an element of the crime. (See People v. Frazer, supra, 21 Cal.4th at p. 760, fn.22, disapproved on other grounds in Stogner v. California (2003) 539 U.S. 607, 609-610 (Stogner) [statute of limitations not an element of offense].) Nonetheless, the prosecution cannot obtain a conviction without meeting the statute’s requirements. (Id. at pp. 609-610.) As in Carmell, section 803 determines whether the prosecution may maintain an action in the first instance, placing on the prosecution the burden of pleading and proving the offense was committed within the applicable period. (People v. Linder (2006) 139 Cal.App.4th 75, 84.) “A statute of limitations in a criminal case is a substantive, rather than procedural, right, and a conviction based on acts occurring outside the statutory period is invalid and may be attacked at any time.” (People v. Sweet (1989) 207 Cal.App.3d 78, 84; People v. Zamora (1976) 18 Cal.3d 538, 547.)
Stogner noted that “a statute of limitations reflects a legislative judgment that after a certain time, no quantum of evidence is sufficient to convict. . . . And that judgment typically rests, in large part, upon evidentiary concerns – for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. (Stogner, supra, at p. 615.) Therefore, Stogner concluded that permitting prosecution after expiration of the statute eliminated a conclusive presumption forbidding prosecution, thereby permitting conviction on a lesser quantum of evidence than had previously been required. (Id. at p. 616.)
We conclude that because a statute of limitations is jurisdictional (People v. Williams (1999) 21 Cal.4th 335, 339-340) and establishing the applicability of the extension period of section 803, subdivision (f) is required to convict this defendant, Carmell controls. Section 803, subdivision (f) lessens the burden of proof necessary to convict. (Carmell, supra, 529 U.S. at pp. 544-546.) We therefore reject respondent’s arguments that Carmell is distinguishable because section 803 did not change the quantum of admissible evidence. Although we agree with respondent that the same corroborating evidence -- I.R.’s siblings’ testimony – would be admissible under both statutes, the consequence remains that the prosecution’s burden of proof is lower.
C. Application of the 2005 Version of Section 803, Subdivision(f) to Defendant Was Harmless Beyond a Reasonable Doubt.
Carmell did not provide guidance on the standard of prejudice to be applied under the fourth Calder category. Defendant argues the error is structural. In re Angela C. (2002) 99 Cal.App.4th 389 explained that “structural error” is something which affects the framework within which the trial proceeds, rather than simply an error in the trial process itself. (Id. at p. 394, quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) “A structural error requires reversal without regard to the strength of the evidence or other circumstances.” (In re Angela C., supra, at p. 394.) The United States Supreme Court has found structural errors only in a very limited class of cases: the total deprivation of the right to counsel at trial; a biased judge; unlawful exclusion of members of the defendant’s race from a grand jury; denial of the right to self- representation at trial, denial of the right to a public trial; and erroneous reasonable-doubt instruction to the jury. Fulminante clarified, “‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’” (Arizona v. Fulminante, supra, at p. 310; see also Angela C., supra, 99 Cal.App.4th at p. 395.)
Here, the error involved only the proof of preliminary facts, and it therefore it does not rise to the level of structural error. However, because federal constitutional issues are presented, we evaluate the error under the test of Chapman v. California (1967) 386 U.S. 18, and will affirm only if we conclude the error is harmless beyond a reasonable doubt. (Id. at p. 24.)
Y.R. testified to two incidents of defendant’s sexual abuse that she witnessed. The first was defendant’s molestation of her while she slept with him and her aunt. The second was his molestation of A.R. that she observed while she and A.R. slept on the sofa bed in the living room. Contrary to defendant’s assertions, her description of these events was sufficiently specific and detailed regarding the location and nature of defendant’s conduct. This strength of this corroboration evidence make it unlikely that had the jury been instructed with a clear and convincing standard that the result would have been different, and we find the failure to instruct with the higher standard of proof harmless beyond a reasonable doubt.
II. NO ERROR IN IMPOSITION OF UPPER TERM.
Defendant contends that because the trial court sentenced him to the upper term based upon the fact there were multiple victims (a fact not found by the jury), his sentence violates Cunningham v. California (2007) 549 U.S. 270 (Cunningham). He also contends his sentencing under the 2007 amendments to the Determinate Sentencing Law (DSL) violated the ex post facto clause because the new law exposed him to greater punishment. We disagree.
A. Any Error Under Cunningham Was Harmless.
Defendant should have been sentenced under the 1998 sentencing law because that was the law in effect at the time he committed the acts for which he was convicted. (People v. Brown (1985) 169 Cal.App.3d 728, 744.) Nonetheless, because his case was pending at the time the rules of Apprendi, Blakely and Cunningham were in effect, he is entitled to the benefit of their holdings that the Sixth Amendment requires aggravating factors to be found beyond a reasonable doubt by a jury (People v. Amons (2005) 125 Cal.App.4th 855, 868 [Blakely applies to cases not yet final when opinion issued]). The trial court’s imposition of the upper term on the basis of multiple victims violated the Sixth Amendment, as, for the trial court to find this aggravating factor, it necessarily engaged in additional fact finding beyond the facts found true by the jury. “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” (Cunningham, supra, 127 S.Ct. at p. 869.)
However, the failure to submit a sentencing factor to the jury is subject to harmless error analysis under the standard set forth in Chapman v. California, supra, 386 U.S. 18, 87. (People v. Sandoval (2007) 41 Cal.4th 825, 838-839 (Sandoval).) While it frequently is “difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court” (id., at p.840), this is not one of those difficult instances. The evidence of multiple victims was overwhelming. I.R. testified Y.R. told him about her molestation; Y.R. testified to her own molestation; and Y.R. testified to A.R.’s molestation, an act she witnessed. We are confident that, had the jury been asked, it would have found there were multiple victims beyond a reasonable doubt.
B. There Is No Ex Post Facto Clause Violation.
Defendant claims the sentence imposed under the 2007 sentencing rules violated his rights under the ex post facto clause. That clause prohibits legislation that makes the punishment for a crime more burdensome after its commission. (People v. McVickers (1992) 4 Cal.4th 81, 84, citing Collins v. Youngblood (1990) 497 U.S. 37, 42.) “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood, supra, at p. 43.)
In Sandoval, the Supreme Court addressed the judicial reformation of section 1170 following a finding of Cunningham error on review, but did not specifically address whether the legislative amendments to the DSL violated the ex post facto clause if applied to offenses committed prior to its effective date. Nevertheless, the Sandoval court commented on whether its reformation procedure, which is identical to the provisions in the legislation, violated ex post facto principles. (Sandoval, supra, 41 Cal.4th at p. 853.) Sandoval concluded that the changes made by its reformation and the 2007 Amendments “‘create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment . . . and such conjectural effects are insufficient’” to establish there is an ex post facto effect to applying this new law. (Sandoval, supra, 41 Cal.4th at p. 854.) Sandoval also said that “the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to -- and would not be expected to -- have the effect of increasing the sentence for any particular crime.” (Id., at p. 855.) Although Sandoval’s comments are dicta and do not control our decision, such dicta carries persuasive weight and should be followed because it demonstrates a thorough analysis of the issue or reflects compelling logic. (People v. Smith (2002) 95 Cal.App.4th 283, 300.)
Defendant was sentenced on October 10, 2007, after the effective date of the amendments to section 1170, subdivision (b) and Sandoval, supra, 41 Cal.4th 825. Under these authorities on which the trial court relied, the court was not required to cite facts or weigh aggravating and mitigating factors, and therefore could have sentenced defendant to the upper term without a jury finding on the aggravating factor. (Id. at pp. 846-847.) However because, as discussed above, we conclude that a properly instructed jury, under the prior law, would have made the findings necessary to expose defendant to an upper term, there was at most a speculative and attenuated possibility of an increased sentence.
III. CALCRIM NO. 1191 DID NOT IMPERMISSIBLY LESSEN THE PROSECUTION’S BURDEN OF PROOF.
The trial court instructed the jury with CALCRIM No. 223 that circumstantial evidence is that which “does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question,” and with CALCRIM No. 1191 that if the jury found defendant committed the uncharged offense under section 288, subdivision (a) by a preponderance of the evidence, that they could, but were 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.” Defendant contends his due process right to be found guilty beyond a reasonable doubt was violated because CALCRIM No. 1191, when considered with this circumstantial evidence instruction, permitted the jury to convict him on foundational circumstantial facts which were not found beyond a reasonable doubt.
The instruction stated in relevant part, “The People presented evidence that defendant committed the crimes of lewd act upon a child in violation of section 288(a) of the Penal Code that were not charged in this case. . . . [¶] 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. . . . [¶] If you decide that 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 crime. If you conclude that the defendant committed the uncharged offenses, that 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. The People must still prove each element of the charge beyond a reasonable doubt.”
Defendant recognizes that the Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford) held CALJIC No. 2.50.01, which is comparable to CALCRIM No. 1191, did not unconstitutionally permit the jury to convict solely on the finding the defendant committed the prior uncharged offense, and thus did not permit conviction on less than beyond a reasonable doubt. Reliford found “the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses.” Rather, the instruction admonished to the contrary that a finding of the uncharged offense was “not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.” (Id. at p. 1013.) Because the jury was also instructed to consider the instructions as a whole, the challenged instruction could not be interpreted to authorize a guilty verdict solely on proof of uncharged conduct. (Id. at p. 1013.)
More recently, in People v. Cromp (2007) 153 Cal.App.4th 476, 480 the court rejected a similar challenge to CALCRIM No. 1191, relying on Reliford. “[T]here is no material difference in the manner in which each of the instructions [CALJIC No. 2.50.01 and CALCRIM No. 1191] allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction.” (Ibid.)
Other than the fact the circumstantial evidence instruction permits the drawing of an inference that the defendant committed the charged crime, we do not see how that instruction negates the explicit commands in CALCRIM No. 1191 that a finding defendant committed the prior uncharged offenses “is not sufficient by itself to prove that the defendant is guilty of the offenses charged here,” and that “[t]he People must still prove each element of the crime charged beyond a reasonable doubt.” Further, the jury was instructed to consider all of the instructions as a whole (No. 200), and that in finding the defendant guilty beyond a reasonable doubt, they must consider all the evidence (No. 220). Given these instructions, we reject defendant’s contentions.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: PERLUSS, P. J., WOODS, J.
The current version of section 803, subdivision (f) provides in relevant part: “(f)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was a victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object. [¶] (2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation. . . .”
Where a statute of limitations does not specify the standard of proof, the preponderance of the evidence standard applies. (People v. Mabini (2001) 92 Cal.App.4th 654, 661.) Hence, under subdivision (f), the preponderance of the evidence standard applies, unless the victim is 21 years or older at the time of the report.
The statute in effect at the time of trial provided in relevant part that “(a) A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. [¶] (b) The requirement that the victim inform another person of an alleged offense does not apply if at the time of the alleged offense the victim was a person: [¶] (1) 17 years of age or younger; . . .” (Tex. Code Crim. Proc., art. 38.07.)
The revision had the effect of raising the age of uncorroborated testimony from victims younger than 14 to younger than 18, which in the defendant’s case was critical because his victim was older than 14 at the time of the offense. (Carmell, supra, 529 U.S. at p. 519.)