Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC814101
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Edward Wayne Domingues was convicted after jury trial of 16 counts of forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1); counts 1-16), six counts of lewd conduct on a child age 14 or 15 (§ 288, subd. (c)(1); counts 17-22), and nine counts of lewd conduct on a child under 14 (former § 288, subd. (b); counts 23-31). The jury further found true allegations as to counts 1 through 16 that defendant committed the offenses against more than one victim (§ 667.61, subds. (b) & (e)), and as to counts 23 through 31 that the complaint was filed within one year of when the victim reported the offense to a law enforcement agency (§ 803, subd. (f)). The jury separately found true an allegation that defendant had a prior strike. (§§ 667, subds. (a), (b)-(i), 1170.12.) The trial court sentenced defendant to prison for the indeterminate term of 480 years to life consecutive to the determinate term of 241 years eight months.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that: (1) the court abused its discretion and violated his right to due process by admitting evidence of uncharged offenses; (2) his trial counsel rendered ineffective assistance by failing to object on ex post facto grounds to admission of evidence of uncharged offenses to prove charged acts committed before 1996; (3) the court incorrectly instructed the jury regarding the burden of proof required under section 803, subdivision (f); (4) the court incorrectly instructed the jury on the definition of clear and convincing evidence; (5) cumulative error requires reversal; and (6) the second strike sentences on counts 23 through 31 were unauthorized. As we agree with defendant’s last contention, but find no other reversible error, we will modify the sentence and affirm the judgment as so modified.
BACKGROUND
Defendant was charged by first amended information with 16 counts of forcible lewd conduct on a child under age 14 between September 6, 1997, and September 5, 2004 (§ 288, subd. (b)(1); counts 1-16); six counts of lewd conduct on a child age 14 or 15 between September 6, 2004, and September 5, 2006 (§ 288, subd. (c)(1); counts 17-22); and nine counts of lewd conduct on a child under age 14 between January 1, 1988, and March 1, 1991 (former § 288, subd. (b); counts 23-31). The information further alleged as to counts 1 through 16 that defendant committed an offense against more than one victim (§ 667.61, subds. (b) & (e)), as to counts 1 through 16 and 23 through 31 that he had substantial sexual conduct with the child (§ 1203.066, subd. (a)(8)), and as to counts 23 through 31 that a complaint containing the offenses was filed within one year of the date of a report to law enforcement and that there was independent evidence corroborating the allegation. The alleged victim of counts 1 through 22 was S. Doe and the alleged victim of counts 23 through 31 was A. Doe. The information also alleged that defendant had a prior serious felony conviction that also qualified as a strike (§§ 667, subds. (a), (b)-(i), 1170.12).
Defendant moved in limine to exclude any evidence of his prior sexual conduct on Evidence Code section 352 and due process grounds as unduly prejudicial. He also requested bifurcation of the trial on the alleged strike, and separately moved for dismissal of counts 23 through 31 on statute of limitations grounds. At the first hearing on the in limine motions, the court took the matters relating to the proffered evidence of defendant’s prior sexual conduct and the request for bifurcation under submission. The court denied the motion to dismiss counts 23 through 31. At a later hearing, the court ruled that the probative value of evidence of uncharged misconduct involving Shirley H., Isabel E., Martina S., Cynthia F., S. Doe, and A. Doe, substantially outweighed the probability that its admission would create a substantial danger of undue prejudice, of confusing the issues, or misleading the jury.
The Prosecution’s Case
Counts 1 Through 22
S. Doe was born in 1990. When she was about five years old, her mother and defendant started dating. He soon moved in with her family, and he lived with them until June 2, 2008, the day S. told her mother and brother that defendant had been molesting her.
Defendant started touching S. when she was five years old, and the touchings continued until she was 17. Defendant kissed her on the lips, he touched her breasts with his hands and his mouth, he touched her vagina with his mouth, and he stuck his finger in her vagina. The touchings occurred frequently, probably every other day, when she was five to seven years old, and they occurred in various rooms in their home and in their backyard. Her mother was not at home when the touchings occurred. As S. grew older, defendant started “getting upset” with her. When he was upset with her, he would not touch her. This meant that the touchings occurred less frequently, and he could go a couple months without touching her. He still touched her more than 10 times each year when she was between the ages of eight and 15. He touched her less often when she was 16 and 17 years old, because he got more “upset” with her. S. allowed the touchings to occur because she did not want defendant to take away any of her privileges or to give her extended lectures about other things she did. When defendant took away her privileges or gave her extended lectures, her mother and brother knew about it and it caused arguments between defendant and her mother. S. also knew that her mother loved defendant and that her whole family trusted him, and she did not know what would happen to her family if she said something. Her mother has epilepsy and S. was afraid that the stress would cause her mother to have seizures.
Once, when S. was five years old, defendant took her into her mother’s and his room and tried to take off her pants. S. said no and pulled her pants back up. He rubbed her clitoris over her pants with his hand. The touchings continued like this until S. was eight or nine years old. Then, defendant started putting his hands inside her pants. When S. was between the ages of nine or 10, and until she was about 15 years old, defendant would grab her butt with his hands under her clothing at least once each year “out of the blue.” Sometimes he touched her while in her bedroom after he woke her up in the morning, and sometimes he touched her after he told her to go to bed earlier than her usual bedtime. She slept on the top bunk of a bunk bed, and defendant would stand next to her bed, rub her breasts, put his hand in her pants, touch her vaginal area, and sometimes penetrate her vagina with his hand.
Sometimes the touchings occurred on the bed in S.’s mother’s bedroom. There, defendant would lie down beside S., stick his tongue inside her mouth, put his hands on her breasts under her clothing, and put his hands in her pants. He would rub her clitoris and sometimes he would put his finger in her vagina and say “let it go.” When S. was about 15, after defendant touched her like this, defendant began asking her to touch his penis. When she refused, he would grab her hand and put it on his penis over his clothing. She would pull her hand away, and she never actually touched his penis with her hand. After each incident, defendant would say, “What we have together is unconditional love.” Then, at least once a year starting when S. was 14 or 15, when she left her mother’s room and closed the door behind her, defendant would call her back. She would open the door and he would pull out his penis and “flash” her. She would then close the door again. All these incidents in her mother’s bedroom continued until S. was 17.
Sometimes the touchings occurred in S.’s uncle’s bedroom after she took a shower in her uncle’s bathroom. In the bedroom, defendant would put his mouth on her vagina and his tongue on her clitoris while she was lying on the bed and he was kneeling on the floor between her legs. These touchings started when she was about nine and stopped when she was about 14 or 15 because then she did not want him to do it anymore. She started realizing that it was wrong.
Defendant tried to touch her once when she was 14 or 15 and they were in the living room of her grandparent’s house in Oregon, but she would not let him. She told him that she felt uncomfortable allowing him to do it there.
Three or four times, the touchings occurred in the living room of their home while S. was watching television with her brother. She would sit on the couch with a blanket over her. Defendant would sit next to her and touch her clitoris under the blanket and her clothes. The touching would continue until S. pulled defendant’s hand out and told him to stop. S.’s brother did not have any idea what was going on, and she did not want him to find out. Two or three times, defendant tried to put his hand down S.’s pants while they were in the garage walking between the outside barbeque and the kitchen. She was able to stop him as soon as he got his fingers under her waistband. Another time he “French kiss[ed]” her in the garage. All these incidents occurred when S. was 15 and 16 years old.
Sometimes, when S. was between 15 and 17 years old, she would be in the kitchen getting herself something to eat and defendant would come up behind her, turn her around, and “French kiss[]” her on the lips. She would ask him to stop and push him away. While she was 16 and 17 years old, defendant initiated talks about sex with her, and he said that his penis would fit in her vagina. The last time defendant had any sexual contact with her was in early May 2008.
S.’s mother never saw defendant act sexually inappropriately with either S. or S.’s brother. The evening S. told her mother and brother about the touchings, S. was crying. She did not go into specifics, but her mother confronted defendant and asked him to leave. After defendant left, S.’s mother offered to call the police, but S. asked her not to. The police came to their home to talk to S. on July 9, 2008, after somebody else made a report.
Counts 23 Through 31
A. Doe was born in 1978. When A. was around two years old, defendant became her stepfather when he married her mother. Defendant and A.’s mother later divorced, but until then defendant lived with A.’s mother and children as a family.
Defendant began touching A.’s privates when she was five years old, and he continued to do so until she was 11 or 12. Once when she was five and she was in bed with her mother and defendant, he told her to give him a kiss and then he put his tongue in her mouth. When she was five to nine years old, he would take A. into the bathroom, turn her around so that she was facing away from him, and have her cross her legs. He would then sit on the toilet, put his penis between her legs, and do “whatever he was doing.” She would leave “when he was done.” He would also put his fingers inside A.’s vagina while they were watching television. He would start by rubbing her arm or leg. Then he would put a blanket over her bottom half, touch her vagina under her clothing, and put his finger in her vagina.
Incidents of oral sex occurred in bedrooms in their home and started when A. was nine years old. Once, when other family members were there, defendant took A. into her brother’s bedroom because she was “supposed to be in trouble, ” and he was “supposed to spank [her].” Instead, he sat A. on the bed and made her give him oral sex. Once, defendant parked his van in an airport parking lot and made A. touch his penis with her hand and her mouth. She threw up when he ejaculated in her mouth.
Defendant started raping A. when she was nine or 10 years old, and continued to do so until she was 11 or 12. Once when A. was 10 and she was playing outside, defendant called her inside, laid her on the bed with her pants off, took off his clothes, got on top of her, and put his penis in her vagina. When he was done, he cleaned her vagina with a towel and she went back outside to play. Several other incidents, more than four, occurred in defendant’s van. Once when A. was 11, defendant parked his van in the dark somewhere in San Jose. He removed her pants, laid her on the floor of the van in the back, lay on top of her, and put his penis in her vagina. She remembers it because she had an orgasm. Other incidents occurred at schools in Campbell and San Jose when defendant took A. to help him with his janitorial work. He would take off her pants and underwear and make her have sex with him on the floor in a classroom or on a couch.
A. did not report any of these incidents to Child Protective Services (CPS) and the police until July 2008, when she heard from a cousin about S.’s allegations. A. had a chance to report the incidents involving her in May 1987, but at that time she told a police officer that defendant had not touched her inappropriately because she loved defendant. “He was my father, and I... didn’t want him to go to jail.” Defendant had told her that if she said anything about what was going on between the two of them, he would go to jail and her family would be broken. He told her that she had to protect him.
Other Uncharged Offense Evidence
Martina S.
Martina S. was born in 1971. A. Doe is her sister and defendant was their stepfather. Defendant began touching her when she was in the fourth or fifth grade and he continued to do so until she started high school. Three or four times a week, defendant would have her massage his foot and while she was doing that he would rub her genitals over her clothes with his other foot. If she tried to stop it, he would get angry.
When Martina was 11, 12, and 13 years old, defendant would rub his penis against her butt or vaginal area as they walked together down the hallway of their home. When she got older, she would get angry and say something to defendant when he tried to do this. One night when Martina was 12 or 13, she was asleep fully clothed in the living room when defendant came home from a softball game. He had been drinking. He lay down behind her and rubbed his penis between her butt cheeks both with and without their clothes on. He also put his penis between her legs. She jumped up and went to her room. The next day she did not mention the incident to anybody; she acted like nothing had happened.
In 1987, Martina’s mother asked her if defendant had been touching her and Martina said no. She was afraid that the family would be split up. She was happy when her mother and defendant divorced. Martina and A. went together to report their molestations to the police after they heard about S.’s allegations.
Isabel E.
Isabel E. was born in 1978. A. Doe and Martina S. are her cousins and their mother is her aunt. Between January 1985 and June 1986, when Isabel was in the first and second grade, her mother would drop her off before school at her aunt’s house and she would return to the house after school before her mother picked her up. Isabel also spent the night there off and on and was there for other family get-togethers. One day while Isabel was at her aunt’s house, she was watching television in the living room sitting on defendant’s lap when he put his hand down the front of her pants and touched her vaginal area. She was embarrassed and ashamed, but she did not tell her mother about it until some time later. Her mother contacted the police and CPS, and Isabel had to go to the police department to answer some questions. No charges were filed as a result of the police investigation.
Cynthia F.
Cynthia F. was born in 1957. Cynthia is developmentally delayed and has the intellectual functions of a five to 10-year-old child. Defendant used to drive the bus that took Cynthia to Hope Rehabilitation. One day, instead of driving her there, he took her to a junkyard. There, he forced her to go to the back seat of the bus by threatening to kill her, he pulled her pants down, and he “climb[ed] onto” her. He touched her chest with his hands and her vaginal area with his penis.
Defendant was arrested in 1992, and convicted of a felony violation of section 220, assault with intent to commit rape on Cynthia F.
Shirley H.
Shirley H. was born in 1958. She met defendant in 1971 when she was 13. One night, Shirley’s mother came home from a dance with defendant. After Shirley’s mother was asleep or passed out, defendant came into Shirley’s room, put his hand over her mouth, and told her not to say anything. He fondled her breasts, pulled down his pants, removed her clothing, and put his penis in her vagina. Afterwards, he got dressed and told her not to say anything. She did not tell anyone because she was afraid. He made her have sex with him on other occasions, and she became pregnant when she was 14. Her mother forced them to get married.
CSAAS Evidence
Private Investigator Carl Lewis testified as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). CSAAS is not a diagnostic tool. It is a “consolation” of conditions and behaviors that typically exist in reported cases of child sexual abuse, and the conditions and behaviors often conflict with many people’s preconceived ideas about the nature and dynamics of child sexual abuse. There are five categories of behaviors in CSAAS: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and unconvincing disclosure; and retraction. Not all five of these categories are present in every case of child sexual abuse.
The Defense Case
Defendant testified in his own defense. He was born in February 1952. Shirley F. was his first wife. He met her in the spring of 1972 through her mother, and he married her in September 1972. They only had intimate relations one time before their marriage. He never forced her to have sex with him. They were married for seven years and had two sons. They divorced in 1977 or 1978.
Defendant drove handicapped people in a bus to and from their homes and resource centers for a transportation company for about six months. Cynthia F. was one of the people he had to pick up on a daily basis. One day Cynthia got up to turn up the volume on the bus radio while the bus was moving. Defendant had to push her back and tell her to sit down. She got upset with him. About two to three weeks later, her allegations against him came out. The incident Cynthia testified about did not happen. He was never alone on the bus with her. He pleaded no contest to assault with the intent to commit rape after she testified at a preliminary examination because he wanted to get home to his family.
Defendant and his second wife babysat Isabel on occasion. One summer afternoon in 1987 when defendant was sitting on the couch, Isabel ran up and “flopped” on the couch, causing defendant’s soda to spill all over him. He pushed her away and she got scared. That was the only physical contact he ever had with Isabel. The incident she testified to did not happen. He never put his hands down her pants or touched her vagina.
Martina lived with defendant and his wife from 1981 to 1988. Martina “had an attitude” that he did not understand. He never forced her to massage his feet, but he did tell her that she would have to do extra chores if she did not do so. He never placed his foot in her vaginal area or attempted to reach under her clothing while she was massaging his feet. He never did anything of a sexual nature with Martina. He never rubbed his penis against her butt, or between her legs.
A. Doe lived with defendant and his wife until he left in 1993. A. was a cheerful, “funny little whippersnapper.” They got along well and had a happy relationship. He never touched her in a sexual way. He never had sexual intercourse with her, he never had her orally copulate him, and he never touched her vagina with his hands.
Defendant met S. Doe through her mother in 1995, and they all lived in the same household until 2008. They had a good relationship until S. developed an interest in boys around 2003 or 2004. He never did anything of a sexual nature to S. He never touched her vaginal area either inside or outside her clothes, he never rubbed her breasts, he never put her hand on his penis, and he never told her that his penis would fit in her vagina.
Verdicts and Sentencing
On February 19, 2010, the jury found defendant guilty of all 31 counts as charged. The jury found true the allegations as to counts 1 through 16 that defendant committed an offense against more than one victim (§ 667.61, subds. (b) & (e)), and as to counts 23 through 31 that a complaint accusing defendant of the offense was filed within one year of the victim’s report and there is independent evidence that corroborates A. Doe’s testimony (§ 803, subd. (f)). The jury also found true the allegation that defendant had a prior strike (§§ 667, subds. (b)-(i); 1170.12).
On March 19, 2010, defendant made an oral Romero motion. The court denied the motion, and sentenced defendant to the indeterminate term of 480 years to life consecutive to the determinate term of 241 years eight months. The sentence consists of six years on count 17 (double the upper term); consecutive terms of one year four months (one-third the middle term, doubled) on each of counts 18 to 22; consecutive terms of 16 years (double the upper term) on each of counts 23 to 31; consecutive indeterminate terms of 30 years to life (double the base term) on each of counts 1 through 16, and 17 consecutive five year terms for the prior serious felony (§ 667, subd. (a)).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
Uncharged Misconduct Evidence
Defendant moved in limine to exclude any evidence of his prior sexual conduct on Evidence Code section 352 and due process grounds as unduly prejudicial. Defendant separately argued that evidence of his prior sexual conduct was not admissible for purposes of proving the statute of limitations under section 803, subdivision (f). At the first hearing on the in limine motions, the court took the matters relating to the proffered evidence of defendant’s prior sexual misconduct under submission, but it ruled that admission of any Evidence Code section 1108 evidence to prove the statute of limitations issue under section 803, subdivision (f) would not violate the ex post facto clause. At a later hearing, the court ruled that the proffered evidence of uncharged misconduct involving Shirley H., Isabel E., Martina S., Cynthia F., S. Doe and A. Doe, was admissible under Evidence Code section 1108, and that the probative value of the evidence substantially outweighed the probability that its admission would create a substantial danger of undue prejudice, of confusing the issues, or misleading the jury. (Evid. Code, § 352.)
“(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... 288, .... [¶] (2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified... has expired. [¶] (B) The crime involved substantial sexual conduct, ... [¶] (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. [¶] (3) No evidence may be used to corroborate the victim’s allegation that otherwise would be inadmissible during trial....” (§ 803, subd. (f).)
On appeal, defendant contends that admission of the evidence of his uncharged misconduct was an abuse of discretion and violated due process. Specifically, he argues that the proffered evidence was not admissible under Evidence Code section 1101, subdivision (b); that even if it was admitted under Evidence Code section 1108, it should have been excluded under Evidence Code section 352 because it was unduly prejudicial; that the evidence was not relevant to corroborate A. Doe’s allegations under section 803, subdivision (f); and that, because the evidence was unduly prejudicial, its admission violated due process.
Defendant does not contend on appeal that admission of the Evidence Code section 1108 evidence to corroborate A. Doe’s allegations under section 803, subdivision (f), violated the ex post facto clause.
The Attorney General contends that the evidence of defendant’s uncharged misconduct was properly admitted pursuant to Evidence Code sections 1101 and 1108. The Attorney General further contends that, even assuming the court abused its discretion in admitting the evidence, there was no reasonable probability of a different outcome.
“Except as provided in this section and in Section[]... 1108, ... evidence of a person’s character... is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) “Nothing in this section prohibits the admission of evidence that a person committed a crime, ... or other act when relevant to prove some fact (such as motive, opportunity, intent, ... plan, ...) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).) “The court in its discretion may 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.” (Evid. Code, § 352.)
“ ‘Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.] In fact, it is precisely because such evidence is so highly probative that traditionally it has been subject to exclusion as improper character evidence in criminal trials. [Citation.]... [H]owever, the ‘Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial....’ [Citations.] [¶] Accordingly, when a defendant is charged with a sexual offense, evidence of his or her uncharged sexual misconduct is no longer subject to the general prohibition against character evidence. (Evid. Code, § 1108.) ‘With enactment of [Evidence Code] section 1108, the Legislature “declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.”...’ [Citation.]” (People v. Yovanov (1999) 69 Cal.App.4th 392, 403-404, fns. omitted (Yovanov); People v. Garcia (2001) 89 Cal.App.4th 1321, 1331 (Garcia).)
Evidence Code section 1108 “passes constitutional muster if and only if [Evidence Code] section 352 preserves the accused’s right to be tried for the current offense.” (People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris); accord, People v. Falsetta (1999) 21 Cal.4th 903, 917-918 (Falsetta).) The trial court’s determination that the probative value of evidence of uncharged sex offenses is not substantially outweighed by the possibility that it will create a substantial danger of undue prejudice “ ‘is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.’ ” (Falsetta, supra, at pp. 917-918.) In making that determination, “trial judges must consider such factors as [the offense’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense[s], its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
“This court reviews the admissibility of evidence of [uncharged] sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
“Given the significant probative value of uncharged sexual misconduct in sex crimes cases, we find evidence of such can be used to corroborate a victim’s allegation of sexual abuse under [former] section 803(g), [now section 803, subdivision (f)]. Of course, the precise probative value to be accorded this evidence will depend on various considerations, such as the frequency of the uncharged acts and their similarity and temporal proximity to the charged acts. [Citation.]” (Yovanov, supra, 69 Cal.App.4th at p. 404; Garcia, supra, 89 Cal.App.4th at pp. 1331-1332; People v. Ruiloba (2005) 131 Cal.App.4th 674, 682 (Ruiloba).)
“The ‘victim’s allegation’ can, and often does, consist of a description of multiple instances of abuse, often spread over years of time in the case of resident child molesters, such as in this case. To the extent an uncharged act shows a defendant’s propensity to commit sexual offenses against a child, that can corroborate all of the charged offenses even if it does not particularly corroborate any specific offense. [Citations.]” (Ruiloba, supra, 131 Cal.App.4th at p. 683.) “Evidence of a person’s propensity to do what the victim has alleged corroborates the victim’s allegation. [Citation.] Further, the corroboration does not have to be sufficient to support a conviction. [Citation.]” (Ibid.)
The trial court admitted the evidence of defendant’s uncharged sexual misconduct under Evidence Code sections 1108 and 352. Defendant contends that the evidence of his prior assault to commit rape on Cynthia F. should not have been admitted under Evidence Code sections 1108 and 352 because it was not similar to, and was much more “vicious” than, the charged offenses. He contends that the evidence concerning Martina S. and Isabel E. was “dramatically more inflammatory” than the charged offenses. And, he contends that the evidence of the incidents involving Shirley H. “could not have been more remote. The incidents occurred more than 30 years before the trial, at a time before [S. Doe] and [A. Doe] were even born.”
“Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, ... significant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch).) Here, the charged offenses involving A. Doe began as early as 1988, and the charged offenses involving S. Doe began as early as 1997. A. testified that the misconduct involving her began when she was five years old, which could have been as early as 1983. Shirley H. testified that uncharged misconduct involving her occurred in 1971 and 1972. Thus, although the alleged misconduct involving Shirley occurred almost 40 years before defendant’s 2010 trial, it occurred only 11 or 12 years before the misconduct involving A. began and 16 or 17 years before the charged offenses began.
“No specific time limits have been established for determining when an uncharged offense is too remote as to be inadmissible. [Citation.] In Ewoldt, a 12-year gap was not deemed too great. [Citation.]” (Branch, supra, 91 Cal.App.4th at p. 284.) Evidence of uncharged offenses that occurred 15 or 16 years before the charged offenses was found relevant in People v. Frazier (2001) 89 Cal.App.4th 30, as the evidence showed the defendant had a pattern of molesting his young female relatives going back that far. (Id. at p. 41.) And, in People v. Soto (1998) 64 Cal.App.4th 966, at pages 990-992, the appellate court found that the passage of 20 years did not render evidence of prior similar incidents prejudicial and inadmissible.
In this case, the evidence showed that defendant first began molesting the 13-year-old daughter (Shirley) of a woman he knew in 1971, then his nine- or 10-year-old stepdaughter (Martina) in 1980 and his five-year-old stepdaughter (A. Doe) in 1983, then his stepdaughters’ six or seven-year-old cousin (Isabel) in 1985, and finally the five-year-old daughter (S. Doe) of the woman he lived with in 1995. These charged and uncharged offenses all involved “a breach of trust and the ‘taking advantage’ of” the young female relatives of defendant’s girlfriend or wife, so none of them were any more inflammatory than the other offenses. (See Harris, supra, 60 Cal.App.4th at p. 738.) And, as this evidence showed that defendant had a pattern of molesting the young female relatives of his girlfriend or wife going back almost 40 years, it was highly relevant to the question of whether he had a propensity to commit the charged offenses. (Branch, supra, 91 Cal.App.4th at p. 285.) The evidence was also highly relevant as corroborating evidence of A. Doe’s allegations as required by section 803, subdivision (f). (Yovanov, supra, 69 Cal.App.4th at p. 404; Garcia, supra, 89 Cal.App.4th at pp. 1331-1332; Ruiloba, supra, 131 Cal.App.4th at p. 682.)
Although Cynthia F. was not a young female relative of his girlfriend or wife, defendant’s molestation of her was still similar to the charged and other uncharged offenses. The evidence showed that, although Cynthia was much older than defendant’s other victims, she had the intellectual capacity of a five to 10-year-old child at the time of the molestation, which was in the same age range as defendant’s other victims. In addition, the molestation of Cynthia also involved “a breach of trust and the ‘taking advantage’ of” her because defendant was her bus driver and she was alone with him in the bus at the time of the molestation. (See Harris, supra, 60 Cal.App.4th at p. 738.) And, we do not believe that the evidence of defendant’s molestation of Cynthia, a female adult with the intellectual capacity of a young child, was any more inflammatory than the evidence of defendant’s molestation of the young female relatives of his girlfriends and wife.
In sum, we cannot say that the trial court’s decision to admit the evidence of the uncharged offenses fell outside the bounds of reason. Accordingly, we find that the court did not abuse its discretion in admitting the evidence of the uncharged offenses. (People v. Wesson, supra, 138 Cal.App.4th at p. 969.) And, as the evidence of the uncharged offenses was relevant to the prosecution of the charged offenses and its admission did not violate this state’s evidentiary rules, its admission also did not violate defendant’s rights under the Due Process Clause. (See e.g., People v. Fitch (1997) 55 Cal.App.4th 172, 178-184 (Fitch).)
Defendant separately contends that, although trial counsel argued below that admission of the evidence of the uncharged offenses under Evidence Code section 1108 on the issue of the statute of limitations under section 803, subdivision (f) would violate the ex post facto clause, counsel rendered ineffective assistance by failing to argue below that admission of the uncharged offenses under Evidence Code section 1108 to prove the charged offenses also violated the ex post facto clause. He argues that Evidence Code section 1108 lightened the prosecution’s burden of proof and that his trial counsel “recognized that the ex post facto clause prohibits admitting evidence to lighten the prosecution’s burden of proof on an element of the offense, as he argued this point. But [counsel] failed to recognize that the argument applied to the underlying charges and not just the statute of limitations allegations to counts 23 through [31].” (See ante, at fn. 4.) “There could be no tactical reason for failing to object to the admission of [Evidence Code] section 1108 evidence to prove the underlying charges.”
A defendant seeking reversal for ineffective assistance of counsel must prove both that counsel’s performance was deficient and that he was prejudiced thereby. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) To show that counsel’s alleged deficient performance prejudiced the defense, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome.” (Id. at p. 694.) A court need not determine whether counsel’s performance was deficient; “[i]f it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Id. at p. 697.)
Evidence Code section 1108 applies to cases tried after its effective date of January 1, 1996, and no ex post facto violation occurs when it is applied to a charged offense that occurred before its enactment. (People v. Davis (2009) 46 Cal.4th 539, 603, fn. 6 (Davis); Fitch, supra, 55 Cal.App.4th at p. 185.) The section “made admissible previously inadmissible evidence of past sexual offenses, but did not change the elements of the crime or burden of proof.” (People v. Flores (2009) 176 Cal.App.4th 1171, 1181.) “ ‘[Evidence Code Section] 1108 is an “ordinary” rule of evidence that does not violate the Ex Post Facto Clause. [Citation.] The text of § 1108 does not speak to the sufficiency of the evidence it renders admissible. It simply states that evidence of prior uncharged sexual misconduct may be admitted to prove propensity. [Citation.] The rule, ‘by simply permitting evidence to be admitted at trial, ... do[es] not concern whether the admissible evidence is sufficient to overcome the presumption [of innocence].” [Citation.] Nothing in the test of § 1108 suggests that the admissible propensity evidence would be sufficient, by itself, to convict a person of any crime. Section 1108 relates to admissibility, not sufficiency.’ [Citation.]” (People v. Flores, supra, at p. 1181, quoting Schroeder v. Tilton (9th Cir. 2007) 493 F.3d 1083, 1088 (Schroeder).)
In Davis, the defendant was charged with the abduction and murder of a 12-year-old girl in October 1993 (Davis, supra, 46 Cal.4th at p. 550), prior to the effective date of Evidence Code section 1108. At his trial, evidence of defendant’s 1976 abduction and sexual assault of a 22-year-old woman (id. at p. 560) and his 1976 abduction of a 40-year-old woman (id. at p. 561) was admitted. Although the evidence was admitted pursuant to Evidence Code section 1101, subdivision (b), our Supreme Court stated that evidence of these offenses would also have been admissible under Evidence Code section 1108. (Id. at p. 603, fn. 6.) In Flores, the appellate court found that Evidence Code section 1109, which allows introduction of prior offenses involving domestic violence in cases where the defendant is charged with a domestic violence offense, was constitutionally sound because of the appellate decisions holding that Evidence Code section 1108, “a statute analogous to section 1109 involving admission of evidence of past sexual offenses... has withstood direct ex post facto challenges.” (Flores, supra, 176 Cal.App.4th at p. 1181.) Carmell v. Texas (2000) 529 U.S. 513, cited by defendant, explained: “[Evidentiary] 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. Therefore, to the extent one may consider changes to such laws as ‘unfair’ or ‘unjust, ’ they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of evidence standard. Moreover, while the principle of unfairness helps explain and shape the Clause’s scope, it is not a doctrine unto itself, invalidating laws under the Ex Post Facto Clause by its own force.” (Id. at p. 533, fn. 23; see also Schroeder, supra, 493 F.3d at p. 1088.)
As defendant’s ex post facto claim here is without merit, he cannot show that he was prejudiced by counsel’s failure to raise the claim below. (See People v. Ochoa (1998) 19 Cal.4th 353, 463; Strickland, supra, 466 U.S. at p. 687.)
Instruction on Section 803, Subdivision (f)
The court instructed the jury that the People had the burden of proving each element of the charged offenses beyond a reasonable doubt, and that the elements the People needed to prove beyond a reasonable doubt for each offense were explained in the instructions defining each offense. The court further instructed the jury that, “in order for you to find the defendant guilty of the counts 23 through 31, you must decide whether for each of the charged crimes in counts 23 through 31, the People have proved that there is independent evidence that clearly and convincingly corroborates [A. Doe’s] testimony. [¶] Independent evidence means evidence that is separate and apart from the testimony of [A. Doe]. [¶] Clear and convincing evidence means evidence of such convincing force that it demonstrates a high probability of the truth of the facts for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence. You should consider all the independent evidence bearing upon this issue regardless of who produced it. [¶] Corroborating evidence is evidence that (1) tends to connect the defendant with the commission of the charged crimes; and (2) is independent of the evidence given by [A. Doe]. [¶] Corroborating evidence need not be strong or even enough to establish each element by itself. Corroborating evidence may include, but is not limited to, charged and uncharged sexual abuse against other victims, a defendant’s propensity or disposition to commit sexual offenses, a common plan or scheme, intent or purpose, motive, admissions by the defendant, admitted exhibits or stipulations, or any other circumstance that tends to connect the defendant to the crime. [¶] Corroboration does not have to be sufficient to support a conviction. [¶] If the People have not met the burden of proving corroboration by clear and convincing evidence, you must find the defendant not guilty of counts 23 through 31.”
Defendant contends that the above quoted instruction was “contradictory and [it] incorrectly stated the law on the applicable burden of proof. While the jury was required to find independent evidence corroborated [A. Doe’s] allegations by clear and convincing evidence, it was also told that the independent corroborating evidence ‘need not be strong.’ The contradictory language was confusing and impermissibly reduced the burden of proof necessary to convict [defendant] of the crime[s] charged in counts 23 through 31.”
The Attorney General contends that “there is no reasonable likelihood that the jury understood the challenged [instruction] to modify or weaken the definition of clear and convincing evidence.... [T]he instruction simply informed the jury that the corroborating evidence need not prove every element or be sufficient to sustain a conviction. As such, the instruction is a correct statement of the law.”
“A trial court must instruct the jury on the allocation and weight of the burden of proof (Evid. Code, § 502; [citations]), and, of course, must do so correctly. It must give such an instruction even in the absence of a request [citation], inasmuch as the allocation and weight of the burden of proof are issues that ‘are closely and openly connected with the facts before the court, and... are necessary for the jury’s understanding of the case’ [citation].” (People v. Mower (2002) 28 Cal.4th 457, 483-484.)
When addressing the propriety of an instruction given, we do not view it in isolation. Rather, we must consider the instruction in light of the entire record, including all the instructions and argument by counsel, and then determine whether there is a “reasonable likelihood” the jury understood it could convict defendant under a reduced burden of proof. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Kelly (1992) 1 Cal.4th 495, 525-527.)
First, the court instructed the jury in this case that it had to find every element of the offenses charged in counts 23 through 31 beyond a reasonable doubt. Second, the instruction at issue here twice stated that the jury must find that the prosecution proved independent corroboration by clear and convincing evidence before it could convict defendant of counts 23 through 31. Third, the instruction correctly explained that the corroborating evidence did not have to be so strong that it proved every element of the charged offenses or would itself support a conviction. Fourth, the prosecutor properly explained during closing argument the correct law to the jury that A. Doe’s testimony was not enough to prove counts 23 through 31, because “some kind of independent corroboration” was needed to support her testimony “[a]nd the law says that for this requirement alone, you use a clear and convincing standard. [¶] So let me tell you what that means.... It means a high probability of truth. It means – and the instructions tell you this – corroboration means evidence that tends to connect the defendant to [A. Doe’s] crimes, tends to suggest that when [A. Doe] is telling you what happened to her, it did, in fact, happen. [¶] It doesn’t have to address every element of her crime. Okay? We don’t need, like, an eyewitness who could come in here and repeat everything she said because this person saw it, although that would be great, but we don’t have that in this case. It’s not required. It doesn’t have to address every element and it doesn’t have to be sufficient to convict on its own; it just needs to tend to corroborate what [A. Doe] is telling you in those counts charged.”
In light of the instructions as a whole and the prosecutor’s argument acknowledging that he had the burden of proving independent corroboration by clear and convincing evidence, we conclude that there is not a reasonable likelihood the jury misunderstood the law regarding independent corroboration and the burden of proof required to convict defendant of counts 23 through 31.
Defendant separately contends that the instruction quoted above “did not adequately define the clear and convincing standard and lessened the prosecution’s burden of proof. Clear and convincing evidence must be ‘so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.’ (In re Angelia P. (1981) 28 Cal.3d 908, 919, internal quotation marks omitted.)”
The Attorney General contends that the definition of clear and convincing evidence the trial court gave “is the standard definition of ‘clear and convincing evidence, ’ as set forth in BAJI No. 2.62.” The Attorney General further contends that the definition the court gave and the definition defendant contends is the correct one are “not significantly different.”
“The key element of clear and convincing evidence is that it must establish a high probability of the existence of the disputed fact, greater than proof by a preponderance of the evidence. Our Supreme Court recognized the importance of this element in In re Angelia P., supra, 28 Cal.3d at page 919: ‘ “Clear and convincing” evidence requires a finding of high probability.’ More recently, our Supreme Court stated, ‘Evidence of a charge is clear and convincing so long as there is a “high probability” that the charge is true. [Citations.]’ (Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1090.) In support of its statement, the court cited In re Angelia P., supra, 28 Cal.3d at page 919, and BAJI No. 2.62. (Broadman v. Commission on Judicial Performance, supra, 18 Cal.4th at p. 1090.)” (People v. Mabini (2001) 92 Cal.App.4th 654, 662.)
BAJI No. 2.62 defines clear and convincing proof as “evidence of such convincing force that it demonstrates, in contrast to opposing evidence, a high probability of truth of the fact[s] for which it is offered as proof.” This is the definition of clear and convincing evidence that the trial court gave to the jury in this case.
“ ‘Without an additional mandate from the Supreme Court or the Legislature, BAJI No. 2.62 remains a correct instruction. [Citation.]’ [Citation.] We hold that BAJI No. 2.62 correctly defines the ‘clear and convincing’ burden of proof necessary to satisfy the corroboration requirement of [former] section 803, subdivision (g) [now section 803, subdivision (f)].” (People v. Mabini, supra, 92 Cal.App.4th at p. 663.) The trial court in this case adequately defined the clear and convincing standard and did not lessen the prosecution’s burden of proof. (Ibid.)
Cumulative Prejudice
Defendant contends that the cumulative effect of the errors he alleges requires reversal of the judgment. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 844.) “The erroneously admitted evidence and instructional errors worked in tandem to diminish the prosecution’s burden of proof and to permit the jury to arrive at guilty verdicts by using improper logic and unreasonable inferences.” As we have found no evidentiary or instructional errors diminishing the prosecution’s burden of proof, we reject this contention.
Second Strike Sentence
The first amended information charged defendant with nine counts of lewd conduct on A. Doe between January 1, 1988, and March 1, 1991, and the jury convicted defendant of all nine of those counts (counts 23 through 31). The trial court sentenced defendant to consecutive terms of 16 years (double the upper term) on each of the counts as a second strike offender. The first strike was defendant’s 1992 conviction for assault with intent to commit rape against Cynthia F.
Defendant contends that a second strike sentence is unauthorized for counts 23 through 31 for two reasons. First, defendant committed the first strike after he committed the offenses charged in counts 23 through 31, so the Three Strikes law did not apply. (People v. Flood (2003) 108 Cal.App.4th 504, 507-508.) Second, the Three Strikes law became effective March 7, 1994. Thus, application of the Three Strikes law to the offenses in counts 23 through 31 violates the ex post facto clauses of both the California and United States Constitutions because the punishment of 16 years under the Three Strikes law exceeded the punishment defendant could have received under the applicable law when the offenses in counts 23 through 31 were committed. (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)
Defendant argues that the punishment for counts 23 through 31 can be no longer than eight years each (the upper term under section 288, former subdivision (b)), resulting in the reduction of the determinate term portion of defendant’s total term by 72 years. Defendant’s total term would be 480 years to life consecutive to 169 years eight months, rather than 480 years to life consecutive to 241 years eight months. The Attorney General concedes that defendant’s sentence must be modified as defendant argues, and we find the concession appropriate. Accordingly, we will modify the judgment and affirm it as so modified.
DISPOSITION
The judgment is ordered modified by reducing the terms for counts 23 through 31 from 16 years to eight years each, thereby reducing the total term to 480 years to life consecutive to 169 years eight months. As so modified the judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., LUCAS, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.