Opinion
A114482
4-28-2008
THE PEOPLE, Plaintiff and Respondent, v. FRANKIE ALLEN HERNANDEZ, Defendant and Appellant
NOT TO BE PUBLISHED
A jury convicted defendant Frankie Allen Hernandez of one count of continuous sexual abuse on a child under the age of 14 years (Pen. Code, § 288.5 ) and two counts of committing a lewd act on a child either 14 or 15 years of age (§ 288, subd. (c)(1)). He was sentenced to an aggregate term of 13 years four months, consisting of the middle term of 12 years for the continuous sexual abuse conviction and two consecutive terms of eight months (one-third of the middle term of two years) for the lewd act convictions. On appeal, defendant challenges his convictions and sentences on various grounds. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
By a second amended information, defendant was charged with one count of continuous sexual abuse (count 1), two counts of committing a lewd act on a child (counts 2 and 3), and one count of annoying or molesting a child (count 4) on his stepdaughter Linda Doe. Defendant was additionally charged with two counts of committing a lewd act on a child (counts 5 and 6) on Aubrey Doe, Lindas friend. The jury convicted defendant of counts 1, 2, and 3. After the jury indicated it was unable to reach a verdict on counts 4, 5 and 6, the court declared a mistrial and later granted the Peoples motion to dismiss those counts. We recount only the trial evidence relating to the incidents involving Linda for which defendant was convicted and to the extent necessary to resolve the issues raised on defendants appeal.
At trial, defendant raised no objection to referring to victims of the charged offenses and the victim of an uncharged sexual assault by their first names and the last name of "Doe."
A. Prosecution case
1. Current offenses
Linda Doe is the stepdaughter of defendant. At the time of trial, she was 18 years old. Lindas mother Mary first met defendant when the child was two years old. When Linda was 11 years old, before she started the sixth grade, defendant moved into the house she shared with her mother and grandmother in mid-1999. In September 2001, when Linda was 13 years old, her mother Mary married defendant. Defendant acted as Lindas father, and she considered him her father.
However, several months after defendant moved into the house in 1999, he started to molest Linda, when she was either 10 or 11 years old, and continued to do so until March 2004, shortly after Lindas 16th birthday. During elementary school, the molestations occurred about once a month. When Linda was in the seventh grade, the molestations increased to every week. After she turned 14, defendant continued to molest her but less frequently.
Linda explained the circumstances of the molestation. Defendant would come into her bedroom at night or the early morning hours while it was dark and she was sleeping. She wore pajamas and a tee-shirt, and usually slept under a bed cover. Defendant had a towel wrapped around him. He would stand by her bed and use one hand to grope and rub or squeeze her breast. Sometimes the touching occurred over the bed cover, but more often he would move the bed cover and touch her breasts over her clothing. On several occasions, defendant touched her breast under her clothing. The touchings lasted more than 10 seconds but less than a minute. Linda was awakened by defendants presence in the room but she pretended to be sleeping when he touched her. Neither defendant nor Linda said anything, but Linda recognized defendant by his outline and his heavy breathing. As she got older, Linda would act like she was sleeping but she would move, make noise, and kick to make defendant stop touching her. Sometimes defendant stopped and left the room when Linda resisted.
On two or three occasions before Linda turned 14 and once after she was 14, defendant touched Lindas vagina. He came into her bedroom at night while she was sleeping and he skimmed over her vagina over her clothing for 10 to 20 seconds. He never touched her vagina under her clothing and never penetrated her vagina with his finger.
Linda made it clear that she did not want defendant coming into her room without knocking. But there was not much she could do about it because she could get in trouble if she got an attitude. At one point she asked for a lock on her bedroom door, but the response was no. She did not recall defendant offering to get a lock for her room.
Linda did not tell her mother what defendant was doing to her because she was afraid of what would happen and how it would affect the family. Nor did she confront defendant because she did not want to testify in court. During the fall of 2003, Linda first disclosed the molestation incidents to her friend Aubrey Doe. Aubrey stated that during an August 2003 sleepover at Lindas home, defendant had shined a flashlight on her face and groped her breast. Linda replied that she understood and believed Aubrey because defendant had also touched her breast. Linda also told her boyfriend Liam that defendant had been coming into her room in the middle of the night and feeling her chest and that it happened a lot. Additionally, Lindas girlfriend Frances learned from Aubrey that defendant had been regularly touching Lindas breast. Frances later discussed the issue with Linda. Linda asked her friends not to tell anyone else about the matter.
The last act of molestation occurred on a Saturday evening in February 2004, shortly after Lindas 16th birthday. While she was at home, Linda and her cousin watched television and then fell asleep on separate couches in the living room. Linda awoke at 3:00 a.m. and saw defendant with his pants down; his penis was directly in front of her face about six inches away. Linda was shocked and popped her head up. She saw defendant pulling up his pants as he left the room.
The following Monday, March 1, 2004, Linda told Aubrey what had happened that weekend and Aubrey told Linda to tell her mother or someone about it. Because Linda was scared by defendants latest conduct, Linda tried to talk to Tom Breen, a school official at her high school. After Linda stated that she had been inappropriately touched outside of school, Breen immediately referred her to Police Officer Allen Chan, who was the schools resource officer on campus. In response to Chans questions, Linda described defendants molestations as follows: he had been touching her breast since she was 10 or 11 years old and he had exposed his penis to her the previous Friday night. She also stated that defendant had touched her vagina over her clothing between five and 10 times. Linda had never previously confronted defendant but she had come forward that day because she could not take the touching anymore. The officer took Linda into protective custody.
Chan asked Linda to make a pretextual telephone call to defendant to get him to admit that he had touched Linda. After the telephone conversation with Linda, defendant called his wife Mary. Defendant told his wife that Linda was not coming home because he had been touching her. Defendant did not admit or deny touching Linda. When Mary came home, she discussed Lindas accusations with defendant. Mary asked defendant if she should believe that every time he went into Lindas room he touched her. Defendant responded that she should believe it happened every time. Defendant appeared causal and did not appear to have any remorse at that time.
Following her placement in foster care, Linda spoke with her mother and told her about the molestations. When defendant agreed to permanently leave the house, Linda returned home after almost a full week in foster care. Later, defendants friend came to the house to retrieve defendants clothing. Linda put a note on the clothes, telling defendant he should still wear a fathers day shirt she had given him that said "Coolest Dad." In early March 2004, Mary sent defendant a birthday card. Linda signed the card and wrote that she missed defendant and that she hoped he was not too angry with her. Linda did not remember why she wrote those statements; when she got home it was a relief and she had a lot of confused, different emotions.
On March 19, 2004, a police officer took Linda to the Child Abuse Listening, Interviewing and Coordination Center (Calico Center), which specialized in interviewing children who are sexual assault victims. Linda gave a video and audio taped statement to Kristy Brodeur, a child forensic interviewer. During this interview, Linda reported that defendant had touched her breasts both under and over her clothing, that he had touched her vagina over her clothing, and that he had exposed his penis to her one night. Linda also told the interviewer that for a while she was not sure if she was not just imagining the events. Brodeurs job did not include assessing the legitimacy of the childs claims.
2. Uncharged sexual offense
At the time of 2005 trial, Melissa Doe was 35 years old. She was a cousin of Lindas mother. Shortly before Mary and defendant were married in 2001, Melissa stayed at their home for a weekend. Melissa slept in Lindas room. During the night, defendant entered the room and awoke Melissa by patting her up and down her chest area over her bed clothes. He touched both her breasts or around her breasts multiple times. When Melissa asked defendant what he was doing, defendant said he wanted to make sure she had enough covers and was not cold. Defendant then walked out of the room. The next morning, Melissa asked defendant why he had been in her room the night before. In a joking way, defendant again said that he was checking to see if she had enough blankets and was not cold. Melissa never told Linda about the incident, and Linda never knew about the incident. Melissa never told any police officers about the 2001 incident until she was questioned about it two months before the trial in this case.
B. Defense case
Thirty-eight-year-old defendant testified in his own defense. He admitted that when he awoke in the morning to go to work, he would wrap himself in a towel, and check on Linda in her bedroom. For the most part, he checked on Linda from the doorway of her bedroom. Sometimes, he would enter the room, shake her on her shoulder, and hand her money if she needed it for that day. Other times, he would enter to give her a kiss goodbye, or just to see if she was in bed if it appeared that she was not in bed. Defendant described two occasions when he accidently touched Lindas breasts while she was sleeping in her bed in the early morning before he went to work. The first incident took place when Linda was 14 years old, and the second incident took place when she was 15 years old. Other than the two accidental touchings he described, defendant denied that there were any other times when he went into Lindas bedroom and touched her breasts either over or under the covers or touched her vagina over clothing.
Defendant also admitted that he touched Lindas breast over clothing when they wrestled, which sometimes occurred in the evening in her bedroom. Another time, Linda grabbed defendants nipple and twisted it. Defendant responded by twisting Lindas nipple to show her that it was not playful. Defendant stopped wrestling with Linda in the summer of 2003 because Linda was getting too big. Defendant also denied he had exposed his penis in front of Lindas face. And, he denied that he ever touched Melissa Doe when she stayed in Lindas room.
Defendant testified that Linda began to change around the summer of 2003. He was having problems with Lindas behavior. She was not doing her chores and lying about it. He took away Lindas Internet access, the use of the bedroom telephone, and he refused to pay her cell phone bill. Linda complained about this constantly. Defendant also thought that Linda was spending too much time with Liam, and her grades were slipping.
Defendant explained his statements in response to Lindas accusations in the pretext telephone call. At the time the telephone rang, he was taking a nap and it affected his ability to understand what was going on initially, but not his ability to tell the truth. During the call, Linda confronted him about touching her breast several times, and early on defendant told Linda that, "I thought thats what you wanted." Defendant explained his response by noting that when asked the question he was still very drowsy from being awakened from a nap by the telephone call. When defendant suggested that the touching was what Linda wanted, he was referring to their wrestling and the way they interacted and played because that was the only contact they had, other than the two accidental touching incidents described by defendant.
During the later portion of the telephone call, when Linda accused him of touching her vagina, he replied he had not touched her vagina and he laughed. And he denied that he had pulled out his penis when she was sleeping in the living room. Defendant admitted that he touched her breast while she was sleeping, but he was referring to the two occasions when he accidentally touched her breasts. When Linda asked if defendant was going to tell Mary what he had been doing, defendant replied, "Yes, Im going to tell her Ive been touching you and that youre not coming home." At trial, defendant testified that his statement to Linda regarding what he was going to tell her mother was a lie; he just wanted to get Linda off the telephone so he could call her mother.
Defendant called five female relatives and one former girlfriend as character witnesses. They testified that they had not noticed any inappropriate behavior by defendant towards young women or his female relatives including Linda. Defendants cousin testified that she knew Linda in high school. In November or December 2003, Linda once complained about defendant invading her privacy and personal life, and that she was angry at him and wanted "to get back," but the witness did not know what Linda meant by "get back."
Linda admitted that by the winter of 2003, she was angry at defendant for interfering with her life and invading her privacy, but she denied she ever told anyone that she would get back at defendant.
DISCUSSION
I. Admission of Testimony of Lindas Extrajudicial Complaints to Others
Because the jury acquitted defendant of the counts relating to Aubreys allegations, we need not address defendants arguments regarding the admission of testimony pertaining to Aubreys complaints to other people.
A. Relevant Facts
Before trial, the prosecutor filed an in limine motion to admit "fresh complaint evidence," namely, that Linda had made complaints about defendants conduct to other people. In his written motion papers, the prosecutor initially sought to admit testimony of the disclosures that Linda had made to her friends Aubrey, Frances, Liam, a school official Tom Breen, and the police. At the pretrial hearings, the prosecutor clarified that he only intended to offer the following evidence under the fresh complaint theory: Lindas statements to her friends Aubrey, Frances, and Liam, and her report to Breen. The prosecutor did not intend to offer Officer Chans testimony as fresh complaint evidence, and he did not mention Brodeurs testimony.
The trial court ruled that evidence of Lindas complaints to others would be admissible under the fresh complaint doctrine to prove the circumstances of the complaint but not for the truth of the facts asserted in the complaint. The court agreed to give the following cautionary instruction at the time the witness took the stand: "The testimony concerning what . . . Linda . . . told this witness is not admitted to prove that the statement of Linda . . . is true. Instead, the testimony is admitted as evidence of what was said by Linda . . ., when it was said, and the circumstances surrounding the making of the statement by Linda . . . ." The court was "prepared to give this admonition a multitude of times, depending on how many witnesses are testifying to fresh complaint evidence."
However, the court noted that its ruling was "without prejudice to the People to ask that the statements be admitted for the truth of their fact[s] . . . [i]f some other exception rather than fresh complaint applies, it is also without prejudice to the defense to ask that [the statements] be admitted as prior inconsistent statements should the foundation justify it, because some statements also could be taken for the substance of what was stated." The court indicated that any pretrial ruling on the admissibility of evidence would have to be revisited when each witness was on the stand. Because it was possible that the court might not be alert to the particular question that would bring forth fresh complaint testimony, the direct examiner or the proponent of the evidence was directed to advise the court when the cautionary instruction should be given. "Address[ing] the [prosecutors] passing statement that there may be testimony attempted to be introduced for purposes other than fresh complaint in which perhaps greater detail is being sought from the witness," the trial court ruled that whether that testimony would be covered by the fresh complaint ruling "would, of course, depend on whether or not an objection is made. So I . . . would not be offended, [defense counsel], if you felt [it was] necessary to object because you were not certain whether or not the evidence was coming in under fresh complaint or not, because without a line-by-line vetting of the witness testimony, there may be situations in which its vague or ambiguous. And so you are certainly permitted to make any objections you believe are appropriate on grounds other than fresh complaint. But the fresh complaint issue has been resolved for our purposes."
B. Analysis
Defendant argues that the trial court erred in allowing extensive testimony under the fresh complaint doctrine, thereby allowing into evidence otherwise inadmissible hearsay statements made by Linda to Officer Chan, Kristy Brodeur, and other witnesses. He contends that despite the trial courts pretrial ruling, evidence of Lindas complaints was not limited. "Instead, the details of Lindas complaint were presented to the jury over and over again through hearsay statements. Sometimes a limiting instruction was given, sometimes it was not. Most significantly, no limiting instruction was given when Officer Chan and Kristy Brodeur, the child abuse counselor, testified in detail about Lindas accusations." We conclude that defendants contentions are not preserved for review, and in any event, would not warrant reversal.
Initially, we note that the prosecutor did not seek to admit the testimony of Officer Chan and Kristy Brodeur under the fresh complaint doctrine. Rather, the prosecutor limited his request to the testimony of Lindas complaints to her three friends and Tom Breen. As to the testimony that was admitted under the fresh complaint doctrine, at the prosecutors request, the court did give the cautionary instruction before the jury heard the testimony of Liam and Aubrey regarding Lindas complaints of defendants conduct. Having so instructed the jury before it initially heard the witnesss testimony on the subject, there was no need to repeat the admonition each time the witness testified regarding Lindas complaints. The court did not give a cautionary instruction before Lindas friend Frances responded to the prosecutors questions regarding Lindas complaints, but none was requested. Nor was a limiting instruction requested when Tom Breen testified about Lindas complaint of some inappropriate touching taking place in a non-school situation.
"Generally when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal." (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3; see Evid. Code, § 353 .) As acknowledged by the trial court in this case, "[t]he reason for this rule is that until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (Jennings, supra, 46 Cal.3d at p. 975, fn. 3.)
Evidence Code section 353 reads: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
Defendant argues that he preserved his objections to the admission of the evidence and the failure of the court to admonish the jury on the use of the evidence by his arguments at the pretrial hearings regarding the admission of fresh complaint evidence. He contends that at those hearings the court forbid further objections during the trial, and therefore, any further objections would have been pointless and contrary to the courts express order. We conclude that defendants arguments are not persuasive.
Before trial, the court ruled that fresh complaint evidence was only admissible with an appropriate cautionary instruction. However, contrary to defendants contention, there was no stipulation or agreement that the courts pretrial ruling would be binding so that defendant would be deemed to have a continuing objection if evidence was admitted without such an instruction or outside the boundaries of the fresh complaint doctrine. Instead, the record shows that the court explicitly informed defense counsel that a renewed objection would be necessary when purported fresh complaint evidence was sought to be elicited by the prosecutor. The court explicitly told both counsel that they would be responsible for alerting the court when a cautionary instruction was appropriate, and that defense counsel would have to object if the prosecutor elicited testimony that exceeded what was permissible under the fresh complaint doctrine. To the extent the prosecutor failed to alert the court that he was eliciting fresh complaint evidence requiring an cautionary instruction, defense counsel was obliged to then object and request the instruction. A timely and specific objection would have permitted the trial court to instruct the jury appropriately. In the absence of a specific objection or request for instruction asserted when the court indicated it would consider the matter, defendant has forfeited his right to challenge the admission of any testimony regarding Lindas complaints to other people, or the courts failure to give a cautionary instruction. (People v. Geier (2007) 41 Cal.4th 555, 611; People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
In any event, the admission of the challenged testimony and the failure to give the cautionary instruction would not warrant reversal. Defendant essentially objects to the witnesses testimony that Linda reported defendant had touched her breasts, that he had touched her vagina, and that he had exposed his penis to her. Contrary to defendants contention, to the extent the challenged testimony was admitted under the fresh complaint doctrine, it merely recounted the nature of the offense without giving unnecessary details of the circumstances under which the molestations took place. (See People v. Burton (1961) 55 Cal.2d 328, 351-352.)
Additionally, we perceive no prejudice to defendant based upon the admission of the evidence regarding Lindas complaints to other people. Concededly, the essential issue for the jurys consideration was Lindas credibility. But we do not see any connection between Lindas credibility and the general details of her complaints as recounted by the prosecutions witnesses, which were generally consistent with her testimony. We therefore conclude that even if a successful objection at trial would have resulted in either the exclusion of details, or the admission of fewer details of Lindas complaints to other people, it is not reasonably probable that a result more favorable to defendant would have been obtained. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Admission of Testimony of Uncharged Sexual Act Committed Upon Melissa Doe
A. Relevant Facts
Before trial, the court held a hearing on the prosecutors motion in limine to admit evidence of defendants commission of an uncharged sexual offense upon Melissa Doe, pursuant to Evidence Code sections 1101, subdivision (b), and 1108. Unlike the two victims of the charged offenses, Melissa was an adult at the time defendant inappropriately touched her breasts. The prosecutor described the incident as follows: In March 2001, Melissa spent the night at defendants residence. On the night that Melissa slept in Lindas room, defendant came in and touched her breasts or the area of her breasts over her clothing and the bed covers. When Melissa asked defendant what he was doing, defendant said he was just checking if Melissa had enough blankets. The prosecutor sought to admit the testimony under Evidence Code section 1108 to show defendants disposition to sexually touch female breasts. He also sought to admit the evidence under Evidence Code section 1101, subdivision (b), to show defendants sexual intent, a common plan or scheme based upon the way defendant inappropriately touched females, and to show that the touchings were not an accident or mistake.
Defendant argued that the evidence should be excluded as too prejudicial under Evidence Code section 352 because the offense involving Melissa was not sufficiently similar given that Melissa was in her thirties at the time of the March 2001 incident, while Linda and Aubrey were children at the time of the commission of the charged offenses. Defendant also argued that there was some danger of confusing the issues, and it was too broad to conclude that defendant had a common plan or scheme to grope womens breasts. Defense counsel conceded, however, that the incident with Melissa occurred under circumstances similar to the allegations regarding Linda.
The trial court rejected defendants arguments and ruled that Melissas testimony of the incident would be permitted. The evidence was found admissible under Evidence Code section 1108 to establish defendants propensity to commit sexual offenses. The evidence was also found admissible under Evidence Code section 1101, subdivision (b), to establish defendants intent, common plan or scheme, and the absence of mistake or accident.
Additionally, the trial court rejected defendants arguments that the evidence should be excluded under Evidence Code section 352. Despite that the incident involving Melissa concerned an uncharged sexual offense against an adult woman, the court determined that such evidence would not be unduly prejudicial. The proffered evidence was not inflammatory in any way, and indeed, less inflammatory than the touchings of Linda and Aubrey. Nor was it likely the jury would lose track that the charged offenses involved Linda and Aubrey, and not Melissa, or that there would be a misuse of time or diversion from the charged offenses by allowing Melissas testimony concerning the incident. Because of the differences in the ages of Linda and Aubrey, and Melissa, there was no danger of confusion given that the elements of the charged offenses were fairly distinct. Nor could the incident with Melissa be considered remote in time from the charged offenses.
B. Analysis
Defendant contends that the trial court abused its discretion by admitting Melissas testimony under either Evidence Code section 1101, subdivision (b), or section 1008, because its prejudicial impact outweighed any probative value pursuant to Evidence Code section 352. We disagree.
Evidence Code section 352 allows a trial court in its discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The trial courts ruling under Evidence Code section 352 "comprises determinations as to relevance and undue prejudice," which are both reviewed for an abuse of discretion. (People v. Benson (1990) 52 Cal.3d 754, 786; see People v. Williams (1997) 16 Cal.4th 153, 213.) We conclude that defendants challenge to the trial courts determination as to relevance of the evidence of the uncharged sexual offense does not warrant reversal.
Defendants contention that the court had insufficient information to rule before trial on the admissibility of Melissas testimony is not properly before us. At the pretrial hearing the parties expressly agreed that the court could rule on the evidences admissibility based upon the discovery that had been provided and the information in the prosecutors motion papers and in the absence of any live testimony. Having failed to object to the courts ruling on the specific ground now asserted on appeal, defendant has forfeited the right to challenge the ruling on this basis. (Evid. Code, § 353.) In any event, the factual details of the incident known to the court were sufficient to allow it to intelligently rule before trial on the admissibility of the evidence.
We also are not persuaded by defendants argument that the court admitted Melissas testimony without any real showing of its probative value or relevance. The trial court did not abuse its discretion in ruling that the uncharged offense was probative in establishing defendants use of a common plan or scheme—that of molesting women of any age while they were sleeping and in a vulnerable position in his home. (People v. Branch (2001) 91 Cal.App.4th 274, 283.) Nor did the trial court abuse its discretion in rejecting defendants argument that the uncharged offense was not sufficiently similar to be probative of his intent to commit the charged offenses upon young girls. The issue of defendants intent was both material and disputed at the time of the courts pretrial ruling. The court reasonably determined that the evidence was "clearly relevant" to establish that defendants intent in touching Linda and Aubrey was not innocent but sexual in nature and to prove that the touchings were not by accident or mistake. (See ibid.)
In the absence of a showing that the court abused its discretion in admitting Melissas testimony, we need not conduct a harmless error analysis or otherwise address defendants argument that the courts ruling was prejudicial.
III. Constitutionality of the Admission of Propensity Evidence and Jury Instructions Pursuant to Evidence Code Section 1108
Defendant raises certain constitutional challenges to the admission of propensity evidence and the courts jury instructions pursuant to Evidence Code section 1108. In a conclusory fashion, he contends that Evidence Code section 1108 violates his federal due process and equal protection rights. He also contends that even "assuming the use of propensity evidence is constitutional, the jury instruction regarding such evidence violates his federal due process right because the jury was instructed it only had to find by a preponderance of the evidence that he committed the uncharged sexual offense," and the instruction thus lessened the Peoples burden to prove him guilty beyond a reasonable doubt of the charged offenses.
Defendant has forfeited his federal due process and equal protection challenges to the admission of propensity evidence under Evidence Code section 1108 by failing to raise these arguments below. (People v. McPeters (1992) 2 Cal.4th 1148, 1188; People v. Benson, supra, 52 Cal.3d at p. 786, fn. 7.) In any event, as he concedes, a due process challenge has been explicitly rejected by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 907, which decision we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendants contention that Evidence Code section 1108 violates his federal equal protection right has also been rejected by Supreme Court dicta in Falsetta, supra, 21 Cal.4th at page 918, and Courts of Appeal. (People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185; cf. People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1311, 1312, fn. 4 [this court rejected an equal protection challenge to the admission of analogous domestic violence propensity evidence under Evidence Code section 1109 based upon Fitch and Falsetta].) We see no reason to further address these issues, which defendant raises to preserve his right to federal court review.
Defendants federal constitutional challenge to the jury instruction on Evidence Code section 1108 propensity evidence is not forfeited by his failure to raise this issue at trial. Because his "claim . . . is that the instruction is not `correct in law, and that it violated his right to due process of law[,] the claim . . . is not of the type that must be preserved by objection. [Citations.]" (People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.) Nevertheless, the argument must be rejected because our Supreme Court has held that there is no constitutional error in the language used by the trial court in this case in its jury instructions. (People v. Reliford (2003) 29 Cal.4th 1007, 1016.) As we are bound by Reliford, defendants constitutional argument fails. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
IV. Constitutionality of Section 288.5
Section 288.5 provides, in relevant part: " Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, . . . or [engages in] three or more acts of lewd or lascivious conduct, . . . with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child. . . . " (§ 288.5, subd. (a).)
Defendant contends section 288.5 violates his federal constitutional rights on two grounds: (1) there is no requirement that defendant be given notice of the specific acts the prosecution will be attempting to prove at trial; and (2) a jury is allowed to convict a defendant without unanimously agreeing on the acts that constitute a violation of the section. However, Courts of Appeal including this one have explicitly rejected these contentions. (See, e.g., People v. Adames (1997) 54 Cal.App.4th 198, 207; People v. Whitham (1995) 38 Cal.App.4th 1282, 1295-1298; People v. Avina (1993) 14 Cal.App.4th 1303, 1311-1312; People v. Higgins (1992) 9 Cal.App.4th 294, 299-308.) We see no reason to further address these issues, which defendant raises to preserve his right to federal court review.
V. Imposition of Consecutive Terms
Defendant challenges the courts imposition of consecutive terms on various grounds, including violations of the rules enunciated in Cunningham v. California (2007) 549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296; and Apprendi v. New Jersey (2000) 530 U.S. 466. He acknowledges his arguments have been rejected by our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 820-823. We are bound by that ruling. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p 455.) He asserts this argument to preserve it for federal court review.
After the filing of the reply brief in this case, the United States Supreme Court denied certiorari in People v. Black, supra, 41 Cal.4th 799, certiorari denied sub nom. Black v. California (Jan. 14, 2008, No. 07-6140) ___ U.S. ___ .)
VI. Imposition of Court Security Fees
Pursuant to section 1465.8, subdivision (a)(1), the court imposed a $20 security fee for each conviction upon which it imposed sentence, for an aggregate fee of $60. Defendant seeks to strike as illegal the $20 security fee imposed for the continuous sexual abuse conviction under count one because the conduct supporting that conviction occurred before August 17, 2003, the effective date of section 1465.8. Defendant contends section 1465.8 does not expressly apply retroactively (§ 3), and the imposition of the fee thus violated the ex post facto clauses of the Federal and California constitutions. However, his arguments have been rejected by our Supreme Court in People v. Alford (2007) 42 Cal.4th 749, 753-759, which decision is binding on this court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Therefore, defendants request for relief fails.
DISPOSITION
The judgment is affirmed.
We concur:
Siggins, J.
Jenkins, J.