F iled 11/25/15 P. v. Flores CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
CARMELO SANCHEZ FLORES,
Defendant and Appellant. G049760
(Super. Ct. No. 12NF1891)

O P I N I O N

A ppeal from a judgment of the Su p erior Court of Orange County, Lance P. Jensen, Judge. Affirmed.

Salvatore Coco and Sandra J. Applebaum for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Senior Assistant Attorney General, and Anthony Da Silva and Martin E. Doyle, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 A jury convicted defendant Carmelo Sanchez Flores of three counts
of lewd acts on children under 14 years of age . (Pen. Code, § 288, subd. (a).) 1 The jury
found true the allegations (1) as to count 1, he engaged in substanti al sexual conduct with a child under 14 years of age (§ 1203.066, subd

. (a)(8) ) ; (2) as to counts 1 and 3, defendant was convicted of the lewd act offense against more than one victim (§ 667.61,
subds

. (b) & (e)( 5 ) 2 ; and (3) a s to count 2, the statute of limitations was tolled (§ 803,
subd

. (f)(l ))

. T he court sentenced defendant to an aggregate prison term of 30 years to
life on counts 1 and 3 , plus a consecutive determinate six years in prison on count 2

.

Defendant contends (1) the court abused its dis cretion by admitting evidence of uncharged conduct pursuant to Evidence Code section 1108; (2) the court improperly instructed the jury with a modified version of CALCRIM No. 1191 allowing the jury to consider the charged and uncharged conduct as propensit y evidence; (3) the
statute of limitations on count 2 was n ot tolled and the jury was improperly instructed o n
t olling ; ( 4 ) the prosecutor committed misconduct ; and ( 5 ) the errors were cumulative ly

p re ju d icial . The People contend the abstract of judgment must be corrected . We agree
with th e People ’ s contention. In all other r espects, we affirm the judgment.

FACTS

In accordance with the usual standard of review, we recite the evidence in the light most favorable to the judgment. ( People v. Johnson (1980) 26 Cal.3d 557, 578.)
We separately recite the evidence in support of each count.

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

2 Section 667.61, subdivision (e)(5) has subsequently been renumbered as subdivision (e)(4). (Stats. 2010, ch. 219, § 16.)3

C ount 1: K

. C.
At the time of defendant ’ s trial, K.C

. was 16 years old. Defendant is K.C. ’ s father ’ s second cousin. K.C. ’ s father considered defendant to be like a brother. K.C. saw defendant at family parties

. She also saw him when defendant visited her family ’ s house or when they visited hi s house.

When K.C. was in the second grade, she went in to the restroom during a family party and closed the door. She was sitting on the toilet when defendant came in.
H e sai d , “ Oh, don ’ t worry . Just keep on doing your business. ” H e went into the shower
behind the shower curtain.

K.C. got up to wash her hands. Defendant came up behind her , put his
arms on the sink , and asked K.C. whether s h e w a n te d to s how him her underwear. She said, “ No. ” “ He kept persisting or asking her to show him. ” He asked wha t color “ they

were. ” Th e n he said, “ Okay, ” and opened the door. They walked out. K.C. felt

“ c onfused ” and “ weird , ” and did not tell her parents what had happened.

Abou t one year later , K.C. and defendant were at a different family party, hosted by an uncle

. K.C. used the restroom after locking the restroom door. She finished
and got up to wash her hands

. D e fendant came in. H e had her ben d over the toilet with
he r hands on the toilet seat. He was behind he r. Her legs were spread apart. Defendant

p ut his fingers in and out of her vagina for less than one minute, w hile ask ing her “ if it
felt good. ” K.C. said, “ No. ” He stopped , washed his hands , and we nt out . K.C. “ went
out and

. . . sat on the couch and just sat there. ” She did not tell her parents because she
felt scared, uncomfortable , weird, and confused.

Defendant came over to K.C. ’ s house one day i n October, when K.C. ’ s little brother was in a Spiderman costume for Halloween, and everyone was looking for
his mask. K.C. ’ s father was not there. D efendant drove the children to a school carnival with K.C. in the front passenger seat an d her brother in the back seat. Defendant a sked
K.C. to keep what had happened “ a secret between us

. ”4 Later, every time she saw defendant, sh e would remember what happened.
S he tried her best to avoid him. Around seventh or eighth grade, she started thinking
about it more. When K.C. was in the eighth grade, she received a journal as a Christmas gift. In the journal

— which she kept private

— s he wrote about boys, her family, what
she did with her friends , and a nything she wanted to remember. In 2011, K.C. wrote in the journal she was “ a statistic of girls who were sexually abused or molested before they turned 10 years old. ” In another entry, she wrote, “ Dear Carmelo

. ” I n another section she wrote, “Does that feel good?” “ But it didn’t feel good. ” She dr e w a picture of the first incident, portraying defendant behind her with his arms on the sink. She wrote that
her underwear “ were pink with white princess crowns on them. ” She never wore th e princess crown und e rwear again.

In 2012, K.C. ’ s mother discovered the journal and read the entries about
defendant. K.C. ’ s parents asked her if the entries were true. K.C. “ started breaking
down. ” She was crying a lot and was “ really overwhelmed. ” She told her mother what had happened. Previously, K.C. had been afra id to tell her parents because she “ knew how close [her] dad was with [defendant], how close [her] family was with him, ho w much they respected him and [she] didn ’ t want to ruin that between them. ” K.C. ’ s parents contacted the police.

Count 2: M.
At the time of defendant ’ s trial , M. was 34 years old. When M. was 13

years old, she went to her friend ’s 14th birthday party at her friend’s apartment. M.’s
friend is d efendant ’ s second cousin

. O ther cousin s were a t t he birthday party

. M.’s
friend introduced defendant to M

.

In the apartment ’ s carport area, M. , defendant, and another female cousin
talked. The female cousin d e par t ed , leaving defendant and M. alone. Defendant flirted5

with M

. H e told h e r he was 27, twice her age. D efen dant began to grope and kiss M

. H e kissed her breasts t hrough her shirt

. H e put his fingers in M. ’ s vagina, forcing the top button of her jeans to come unbuttoned.

M.’s friend saw M. walk from the side of the apartment building with
defenda nt trailing behind her. M. was wiping her mouth, as though there was some “ kind
of slobber. ” M. told her friend what had happened.

A year later, M. saw defendant at her friend’s birthday party. After the birthday party , M. lost touch with her friend

. Ov e r 17 year s l a t e r , M.’s friend contacted
her via Facebook in June 2012 and gav e M. instructions to contact a detective due to an
incident concerning defendant and the friend’s niece

.

Count 3: N.
At the time of defendant ’ s trial, N. was 16 years old. Defendant is N. ’ s mother ’ s cousin. When N. was growing up, prior to the charged incident, she would see
defendant at parties and get

- togethers , a n d got along well with him

.

When N. was 7 or 8 years old, her family lived at her grandparents ’ house. One day, defendant , his mother, and his brother came over to visit. Defendant, N. , and
N. ’ s young er brother went to the downstairs living room to look at t he dogs. N. ’ s brother was sitting on a couch , paying attention to the dogs.

N. and defendant were behind th e couch. Defendant was kneeling on one
knee and “ sat [N. ] on his lap. ” N. was wearing light blue sk orts (combination skirt with shorts) adorned w i t h Tinkerbell on the side that went to her mid

- thigh.

Defendant rubbed N. ’ s knee. He started going high er and began rubbing
the inside of N. ’ s leg under her skirt but over her shorts. N. fe l t uncomfortable , so she

“ got up like if nothing happened, everything was all right, and just talked to him about the dogs. ”6 T hat night, defendant went into N. ’ s bedroom a s she was going to sleep.
He turned on the light and closed the door. H e sat on N. ’ s bed and they “ were just talking. ” She had changed into black sweats. He p ut his hand under the blanket and

s tarted r u bb ing her leg over her sweats

. She push e d his hand away more than once , but he kept putting his hand b a ck.

N. felt scared, so she sai d she was going to get a glass of water and got out
of the bed. Defendant walked out too. N. went to her mother ’ s room because she was
scared. She was crying and to l d her mother she was scared to sleep by herself. She did
not tell h er mother about what had happened b ecause she felt her mother “ wouldn ’ t think
it w as important or

. . . that [defendant] meant i t in the wrong way. ” N. “ felt like it

wasn ’ t right, ” but she “

just didn ’ t want to say anything. ” She told a female cousin about what had happened . T he cousin “ would stay with [N. ] all the time

. . . at family parties. ”

In the summer of 2012 , N. ’ s aunt, R

. P

. , phoned N. and told her that an incident had happened in the family

. R .P

. is N. ’ s mother ’ s sister. R.P. asked whether anything had happened between N. and defendant. N. told R .P

. that defendant had caressed her leg when she was a little girl and that nothing else had ever happened

.

N. ’ s father to ok her to the police. N. ’ s mother , on the other hand, did not support N. talking about what had happened.

Uncharged Conduct: R

. A.

At the time of defendant ’ s trial, R.A. was 27 years old. R.A. ’ s high school boyfriend (and, briefly, her husband) was defendant ’ s cousin. R.A. had been emancipated at age 16

. R.A. got to know defendant very well

.

When R .A. was 17 years old , she was driving and saw def endant driving to her right and telling her to pull over. She pulled into a McDonald ’ s restaurant park ing
lot. Defendant kissed R.A.’s lips, which was his “ thing

— he would kiss everyone on the lips. ” They chatted for a few minutes. Defendant grabbed R.A. by the face, t r ied to k iss7

her , and put his arms around her. He stuck his tongue in her mouth. R. A. felt very uncomfortable. R.A. jum ped in her car, locked t he doors , and drove off as fast as she
could.

Defense Case
Defendant testified in his own defense and denied all of the events as recounted by the victims of the charged offenses as well as R.A.’s testimony. He also called witnesses to attest to his good character

. Finally, defendant called a psychologist to testify on his behalf.

DISCUSSION

I. The Court Properly Admitt ed Evidence of Defendant ’ s Uncharged Conduct w ith R.A. and Pro perly Instructed the Jury on Such Evidence Defendant argues the court should have excluded evidence of his encounter
with R.A. H e further argues that , even if the evidence was properly admitted, the court erroneously instructed the jury with m o difi ed CAL CRIM No s . 1191 , 1122, and 370

. 3

A. Admission of Uncharged Conduct Under Evidence Code S ection 1108 Defendant argues the R.A. incident was dissimilar to his crimes against
K.C. and N. , because R.A. was unrelated to defendant , she was older than the other

3 Defendant perfunctorily argues the court erred by failing sua sponte to give a unanimity instruction, since R.A. testified defendant woul d customarily kiss her and other people on the lips as a form of greeting. Defendant has waived this contention by failing to include reason ed argument on a court’s sua sponte duty to give a unanimity instruction with respect to uncharged conduct. ( Peopl e v. Stanley (1995) 10 Cal.4th 764, 793; Cal. Rules of Court, rule 8.204(a)(1)(B).) But w ithout extended analysis, we note that the asserted sua sponte duty to give a unanimity instruction with respect to uncharged conduct was rejected by the California S upreme Court in People v. Ghant (1987) 3 Cal.3d 739, 773

- 774.8

victims , the age difference between her and defendant w a s gr eater, the incident occurred
in a public place, and he did not touch R.A. ’ s vagina or ask to see her underwear. He
also claims the evidence was cumulative and remote in time

.

At the Eviden ce Code section 402 hearing , the People requested the
admission of evidence of two different incidents concerning R.A. One was the encounter
whe re defendant and R.A. pulled over after seeing each other driving. The second involved multiple incidents at f amily functions whe re defendant would greet R.A. with tight hugs that made her uncomfortable, and kissed or touched her near her lips and
breasts. Defense counsel argued the driving incident was too remote and lacked certainty, its probative value was outweighed by the consumption of time, and it was unduly prejudicial. Defense counsel argued the second group of incidents was more prejudicial than probative.

The court found the driving incident was admissible under Evidence Code
section 1108 and was relev ant and probative as to intent. Under Evidence Code
section 352, the court found the driving incident was more probative than prejudicial and would not unduly consume time or mislead t he jury. Th e court stated it had considered the factors and analysis under People v. Falsetta (1999 ) 21 Cal.4th 903, 907 ( Falsetta ).

T he court found the second group of incidents to be vague and not necessarily relevant or similar to the charged conduct, as they appeared to be “ overly affectionate, uncomfortable situations born of family functions. ” The court therefore
excluded evidence of th e se cond group of incidents.

Evidence Code section “ 1108 is an exception to the general prohibition against admit ting character evidence to prove criminal disposition or propensity. ” ( People v. Jandres (2014) 226 Cal.App.4th 340, 352 ( Jandres ) )

. E vidence of the
defendant ’ s commission of an uncharged “ sexual offense ” is admissible u nder Evidence
Code section 110 8 if the evidence is admissible under Evidence Code section 352. (Evid.9

Code, § 1108, subd. (a).) Thus, the trial court ’ s inquiry under Evidence Code
section 1108 is two

- fold: First, does the uncharged conduct come within Evidence Code
section 1108 ’ s defini tion of “ ‘ sexual offense ’ ” ? ( Jandres , at p. 353.) Second, should the
evidence be excluded under Evidence Code section 352? ( Jandres , at p. 353. )

As to the first inquiry, the statute define s “ ‘ [s] exual offense ’ ” to in c l ude

a nnoying or molesting a child under 18 years of age in violation of s ection 647.6. (Evid. Code, § 1108, subd. (d) (1) (A) .) A trial court has discretion to exclude evidence that the defendant committed a statutorily

- enumerated sex offense “‘ only if the “ showing of preliminary fa cts is too weak to support a favorable determination by the jury. ”’” ( Jandres , supra , 226 Cal.App.4th at p. 353.)

Defendant argues no credible evidence s howed R.A. was younger than 18 years of age at the time of the driving incident

. To the extent d efen dant challenges the

court ’ s conclu sion at the Evidence Code section 402 hearing that the People ’ s pro f fered
evidence c o uld support a jury finding h e violate d section 647.6 , h is challenge lacks merit.
A t the hearing , the prosecutor argued R.A. was 17 years o ld when the incident occurred ; defense counsel stated R.A. was at least 17 years of age at th at time

. To the extent defendant challenges the sufficiency of the evidence to support the jury ’ s finding that R.A. was under 18 years of age, his argument atte mpts to reweigh the evidence and invade the province of the fact finder

. The jury was entitled to credit R.A.’s testimony that she was 17 years of age at the time of the incident.

As to the s econd inquiry, Evidence Code section 352 affords a court the
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. ” ( Ibid .) In this context , “ prejudice ” means evidence which tends to evoke an emotional bias against the defendant and which has little effect on the issues ; “‘“ prejudicial ” is not synonymous with “ damaging. ”’” ( People v. Bolin (1998 ) 18 Cal.4th 297, 320.) “ [T]h e10

trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of
time. ” ( People v. Rodrigues (1994) 8 Cal.4th 1060 , 1124). We will disturb that ruling only if “‘ the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. ’” ( Ibid. )

Here, the court did not abuse its discretion under Evid ence Code
section 352. It considered the Falsetta factors for determining undue prejudice, i.e., the uncharged offense ’ s “ nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternativ es 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. ” ( Falsetta , supra , 21 Cal. 4th at p.
917

. ) T he court found the evidence of R

. A

. ’ s encounter with defendant in the parking lot was more probative than prejudicial because it showed defendant ’ s inten t was sexual and
because R.A. ’ s testimony would not unduly consume time or mislead the jury . In contrast, the court found defendant ’ s other conduc t w ith R.A. was vague and dissimilar to the charged offenses, and excluded the evidence. The court ’ s admission of the challenged evidence was n either arbitrary , capricious, n or absurd

.

Defendant ’ s argument the R.A. incident was dissimilar to the charged
offenses is unpersuasive. Both R.A. and M. had no f a mily relat ionship to defendant. Defendant was about 17 years older than R.A., and a bout 11 years older than M

. 4 The
R.A. incident happen ed in a parking lot, the M. incident i n a carport area. Th e R.A.
incident occurred around 2003 or early 2004, about the same time as the K.C. and N.

4 Although M. testified defendant said he was 27 years ol d when she was 13 years of age, he is actually about 10 and a half years older than M

.11

incidents. Given these similarities, defendant ’ s reliance on Jandres , supra , 226 Cal.App. 4th 340 is unavailing. In Jandres , “ the many differen ces between the two
offenses [ includ ed] the circumstances (daytime attempted burglary in one case, possible stalking and attack at night in the other); the ages of the victims (11 and 18); and the nature of the conduct (inappropriate touching of the mouth in one case, rape in the other)

. . . . ” ( Id. at p. 356.)

B. Jury Instructions on Use of Other Crimes as Propensity Evidence, Child Annoyance, and Motive

Defendant contends that even if the court properly admitted evidence of the
R.A. incident under Evidence Code section 1108, the cour t erred by fail ing to instruct the jury the People bore the burden of proving (1) he committed child annoyance against R.A., and (2) he did not actually and reasonably believe she was at least 1 8 years of age. 5

The court instructed the jury with the following modified version of
CALCRIM No. 1191 on the use of other crimes as propensity evidence : “ The People presented evidence that the defendant allegedly committed the crimes of lewd act upon a child under 14 years of age, and child annoyance. Those crimes are defined for you in these instructions. [¶] If you decide that the defendant committed one or more of these
offenses beyond a reasonable doubt, you may, but are not required to, conclude from that evidence that the defendant was disposed or inc lined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit any of the other charged offenses. [¶] If you conclude that the defendant committed one or more of these offenses, that conc lusion is only one factor to consider

5 In his reply brief, defendant argues for the first time his trial counsel rendered ineffective assistance of counsel by failing to request that CALCRIM No. 1122 be given in its entirety. We do not address issues first raised in the reply brief. ( Provost v. Regents of University of California (2011 ) 201 Cal.App.4th 1289, 1295 .)12

along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the other charged offenses. The People must still prove each element of every charge and allegation be yond a reasonable doubt. ”

Over defense counsel ’ s initial objection , this modified version of
CALCRIM No. 1191 given by the court omi tted the second and third paragra phs of the pattern instruction. Those omitted paragraphs would have provide d : “ 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 off ense s. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable do ubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. ” (CALCRIM No. 1191.)

The co urt instructed the jury with the following modified version of
CALCRIM No. 11 22 on the elements of child annoyance : “ You have heard testimony from witness [R.A.] regarding an uncharged offense of annoying a child , in violation of
Penal Code section 647.6. [¶] To prove the defendant guilty of this crime, the People must prove that: [¶] One, t he defendant engaged in conduct directed at a child; [¶] Two, a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by t he defendant ’ s conduct; [¶] Three, t he defendant ’ s conduct was motivated by an unnatural or abnormal sex ual interest in the child; [¶] and four, t he child was under the age of 18 years at the time of the conduct. [¶] It is not necessary that the child actually be irritated or disturbed. It is also not necessary that the child actually be touched. It is not a defense that the child may have consented to the act. ”

T his modified version of CALCRIM No. 1122 given by the court omitted
the following optio nal paragraphs of the pattern instruction : “ [Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.] [¶]

< Defense: Good Faith Belief Over 18 > [¶] [The defendant is not guilty of this crime if13

(he/s he) actually and reasonably believed that the child was at least 18 years of age. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe the child was at least 18 years of age. If the Pe ople have not met this burden, you must find the defendant not guilty of this crime.] ”

A court bears a sua sponte duty to instruct the jury on the essential elements of an offense ( People v. Flood (1998) 18 Cal.4th 470, 480

- 481 ), and “‘ on the general princ iples of law governing the case ’” ( People v. Michaels (2002) 28 Cal.4th 486, 529), i.e., “‘“ those principles of law commonly or closely and openly connected with the facts
of the case before the court ”’” ( id. at p. 530). A court also has a sua sponte duty to instruct on a defense if the defendant appears to rely on the defense, or if substantial evidence supports the defense and it is not inconsistent with the defendant ’ s theory of the case. ( People v. Barton (1995) 12 Cal.4th 186, 195.) “‘ Generally , a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. ’” ( People v. Hudson (2006) 38 Cal.4th 1002, 1011

- 1012.) “ We
review defendant ’ s claims of instructional error de novo. ” ( People v. Johnson (2009) 180 Cal.App.4th 702, 707.)

The court did not err by giving CALCRIM Nos. 1191 and 1122 with the omissions of which defendant complains

. As modified and given here, CALCRIM No.
1191 instructed the jury that if it decide d defendant “ committed one or more of these offenses beyond a reasonable doubt , ” it could consider such offense(s) as propensity

ev idence. Thus, the modified version actuall y raised the standard of proof as to
defendant ’ s uncharged offense concerning R.A., fr o m preponderance of the evidence to beyond a reasonable doubt. “ [T] here was no risk the jury would apply an impermissibly low standard of proof. ” ( People v. Villatoro ( 2012) 54 Cal.4th 1152, 1168 ( Villatoro ).)

As to CALCRIM No. 1122, defense counsel did not request inclusion of the omitted paragraphs. Nor did the court err by not including them sua sponte. As the court14

stated, “ We don ’ t have anything about a good fait h belief. ” The defense theory of the
case was that defendant did not kiss R.A. as she described. This theory was inconsistent
with a n alternative defense theory that , even if he did commit the act , he believed she was 18 years old. 6
Finally, defendant contends the court erred by instruct ing the jury the People were not required to prove he had a motive to commit any of the charged crimes

. ( CALCRIM No. 370. ) He argues the instruction conflicted with CALCRIM No. 1122 ’ s requirement tha t a defendant ’ s conduct be m otivated by an unnatural or abnormal sexual interest in the child in order to constitute child annoyance. Defendant cannot challenge the giving of the motive instruction, however, since he requested it below. ( People v. Lucero (2000) 23 Cal.4th 692, 723.) Furthermore, the motive instruction expressly refers

to “ charged ” crimes. The jury was instructed to p ay careful attention to all the instructions and consider them together

. Jurors are presumed to u nd erstand, correlate ,

an d follow the court ’ s instructions. ( People v. Sanchez (2001) 26 Cal.4th 834, 852.)

II. The Court Properly Instructed the Jury With CALCRIM No. 1191 as to the Three Charged Crimes and Gave the Appropriate Unanimity Instruction

Defendant argues evidence of the charged crime s for use as propensity
evidence under Evidence Code section 1108 should not have been permitted . Defendant further argues, even if the evidence was properly permitted to be used as propensity
evidence , the co urt failed to conduct an Evidence Code section 352 analysis before instructing the jury with the modifi ed version of CALCRIM No. 1191 quoted above

.

6 In his reply brief, defendant asserts his counsel argued R.A. was actually 18 years old

. His cited reporter’s transcript pages, however, reveal only that defense counsel argued R.A. could have bee n 17, 18, or even 19 years old.15

With respect to K.C. a n d M

. , d efendant c laim s the court g a v e an incomplete unanimity
instruction. 7

In Villatoro , supra , 54 Cal.4th at pages 116 4

- 1165 , o ur Supreme Court held
Evidence Code section 1108 permits the use of charged and uncharged sex offenses as propensity evidence in sex offense cases.

Although the judge must consider Evidence Code section 35 2 ( Villatoro , supra , 54 Cal.4th at p. 1163) , he need not “‘ expressly weigh prejudice against probative
value

— or even expressly stat e that he has done so [citation ]. ’” ( People v. Padilla (1995) 11 Cal.4th 891, 924, disapproved on another ground in People v. Hill (1998) 17
Cal.4th 800, 823, fn. 1.) Rather, a reviewing court can “ infer an implicit weighing by the trial court on the basis of record indications well short of an express statement

. ” ( Padilla , at p. 924. ) F or example, based on “ argument of counsel or comments by the trial court, or both, touching on the issues of prejudice and probative value

. . . , we might infer that the court was aware of the Evidence Code section 352 issue and thus of its duty to weigh probative value against prejudice. ” ( Ibid. ) In Villatoro , the trial court stated to the parties, “‘ [CALCRIM No.] 1191, for the record, I ’ ve given you both a copy based on the instruction given in [ People v. Wilson (2008) 166 Cal.App.4th 1034].” ( Villatoro , at p. 1168.) Based on t he “ ‘ t rial court ’ s express reliance on a key case in this area, considered in light of the entire record, ’ ” our Supreme Court inferred that “ the trial court implicit l y conducted [ an Evidence Code ] section 352 analysis. ” ( Ibid. )

Here, b ased on the court ’ s expre ss Evidence Code section 352 weighing of probative value versus prejudice with respect to the R.A. uncharged conduct, the court ’ s

7 In his reply brief, defendant argues for the first time his trial counsel rendered ineffective assistance of counsel by failing to ask the court to conduct an Evidence Code section 352 balancing prior to allowing each charged act to be used as propensity evidence for the other charged conduct. We do not address issues first raised in the reply brief. ( Provost v. Regents of University of California , supra , 201 Cal.App.4th at p. 1295 .)16

reference to the Falsetta factors, and the court ’ s lengthy discussion of CALCRIM No. 1191 (which demonstrated the court’s familiarity with the instruction), we infer the

“ court had in mind the appropriate analytic framework for passing on the admissibility of the evidence, that the court was therefore aware of the need to weigh the evidence under section 352, and thus that it must have done so ” with respect to the charged conduct. ( Villatoro , supra , 54 Cal.4th a t p. 1183. )

Finally, defendant notes there was evidence defendant touched K.C. on two

se parate dates and touched M. on the same date in more than one way. Defendant

co ntend s the court erred by omitt ing the following optional last paragraph of CALCRIM
No. 3502 , a unanimity instruction: “ [Evidence that the defendant may have committed the alleged offense (on another day/ [or] in another manner) is not sufficient for yo u to find (him/her) guilty of the offense charged.] ” This optional paragraph was unnecessary, however, given the court ’ s clear unanimity instructions to the jury. The court instruc ted the jury with CALCRIM No s

. 350 2 and 35 0 0 as follows: “ The defendant i s charged with lewd act upon a child under 14 in counts 1 and 2. [¶] The People have presented evidence of more than one such act. To prove the defendant committed these offenses, you must not find the defendant guilty unless you all agree that the Peop le have proved
that the defendant committed at least one act of touching [K. C. ’ s ] vagin al area for count 1 and [M. ’ s ] vaginal area for count 2 and you all agree on which act he committed for each

count

. ” ( CALCRIM No. 3502 .) “ The defendant is charged

. . . with lewd act upon a child under 14 in count 3 on or about and between January 13, 2004, and January 12th, 2006. [¶] The People have presented evidence of more than one act to prove that the
defendant committed this offense. You must not f ind the defendant guilty unless you all agree that the People have proved that the defendant committed at l e a s t on e [ of ] these acts and you all agree on which act he committe d. ” ( CALCRIM No. 3500 .)17

III. There was No Error as to Count 2 Concerning M.

De fendant contends count 2 was barred by the statute of limitations and
must therefore be dismissed. He further argues, even if the charge was not time barred, the conviction must be reversed because (1) the verdict form did not ask the jury to make
a findi ng of substantial sexual conduct, (2) the jury was given no guidance and made no finding on independent corroborating evidence, (3) the unanimity instruction referred to
defendant ’ s mere touching of M. ’ s vagina, and (4) the single witness testimony
instruc tions conflicted w ith the requirement that M. ’ s testimony be corroborated.

A. The Statute of Limitations was Tolled Under S ection 803, S ubdivision (f)(1) The statute of limitations for a violation of section 288, subdivision (a), is six years. (§§ 288, subd. (a), 800; People v. Smith (20 11) 198 Cal.App.4th 415, 424 .) In
an amended complaint filed on July 16, 2012 , t he People alleged defendant committed section 288, subdivision (a) offenses upon M. be tween September 9, 1992 and September 8, 199 3. Thus , the prosecution of count 2 began more than six years after the alleged
offense. In an amended information filed on November 12, 2013, the People first alleged that the statute of limitations was tolled pursuant to section 803, subdivision (f)(1) (the tolling allegation) . The tolling allegation alleged the victim reported the offense to a law enforcement agency on June 18, 2012, the offense involved substantial sexual conduct as described in section 1203.066, subdivision (b), and that the People relied on
the “ additional victims ” for in dependent admissible evidence.

Section 803, subdivision (f)(1) extends the statute of limitations (under certain circumstances) when a victim reports to California law enforcement that, while
the victim was under the age of 18 years , a section 288 crime was committed against him
or her. The statute allows the People to file a complaint within one year of the victim ’ s18

report if (1) the crime involved substantial sexual conduct under section 1203.066, subdivision (b) (defined to include penetration of the victim ’ s vagina by a foreign object ), and (2) independent admissible evidence (n ot includ ing opinions of mental health professionals ) co rroborates the allegation and, if the v ictim was at least 21 years old
when report ing the crime , the independent evidence must be clear and convincing

. (§ 803, subd. (f)( 2 ) (B), (C) & (3).) 8

Here , within one month after M. first reported the crime to Anaheim law
enforcement in June 2012 , the People charged defendant with the offense in an amended complaint . But the People filed the amended information containing the tolling allegation almost 17 months after M. lodged her report.

Section 1009 authorizes a court to permit a complaint or inform ation to be
amended “ for any defect or insufficiency, at any stage of the proceedings

. ” The statute further provides: “ The defendant shall be required to plead to such amendment or amended pleading forthwith

. . . and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby , in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An

. . . i nformation [ cannot be
amended ] so as to charge an offense not shown by the evidence taken at the preliminary
examination

. . . . ” (Italics added.)

Similarly , under section 960, “ [n] o accusatory pleading is insufficient, nor can the trial, judgment, or oth er proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits

. ” (Italics added.)

8 A third statutory requirement

— i.e., that t he “ limi tation period specified in Section 800, 801, or 801.1, whichever is later, has expired ” (§ 803, subd. (f)(2)(A))

— was met in this case

.19 Here, de fendant ’ s substantial rights were not prejudiced by the late addition of the tolling allegation because defendant was given notice of the pertinent facts at his January 10, 2013 preliminary hearing at which he and his counsel were present

. There , an officer testif

ied , as to M. , that he interviewed her on June 18, 2012, and she told the
detective that defendant “ stuck a finger inside of her vagina ” at a friend ’ s birthday party
in 1993. 9
Accordingly, c ount 2 was not time

- barred due to the timing of the
amendment of the information which added the tolling allegation.

B. Jury Instructions and Verdict Form Defendant complains that the court instructed the jury with CALCRIM No. 1110 on lewd acts on a child under the age of 14 years with respect to counts 1, 2, and 3,
which describes the conduct element as follows: “ The defendant willfully touched any part of a child ’ s body either on the bare skin or through the clothing. ” He further complains that t he court instructed the jur ors the y had to unanimously agree that the

9 Defendant contends the tolling allegation “changed” the c harged offense because section 803, subdivision (f)(1) “ a dded the requirement [of] substantial sexual conduct that had to be proved by independent corroborating evidence” by clear and convincing proof. Although defenda nt “has found no specific case” supporting his contention the tolling allegation “changed” the charged crime, he urges us to adopt his position pursuant to People v. Morgan (1977) 75 Cal.App.3d 32

. Morgan states the statute of limitations in criminal matters is jurisdictional and that a charging document which shows on its face the prosecution is time

- barred fails to state a public offense. ( Id. at p. 36.) But Morgan also states: “An amendment to toll the statute of limitations does not change the offense charged and thus is permissible.” ( Id

. at p. 38; see also People v. Chadd (1981) 28 Cal.3d 739, 758.) Furthermore, “there is neither claim nor showing that such an amendment would prejudice the substantial rights of this defendant

. . . .” ( Chadd , at p. 758

. ) As to jurisdiction, the “tolling of the statute of limitations is an essential element in the final power to pronounce judgment, but is not part of the crime itself.” ( Morgan , at p. 40.)

I n any case, defendant’s focus on “changing” the charge is contrary to section 1009 ’s express standard, which prohibits an amendment which charges “an offense not shown by the evidence taken at the p reliminary examination. ” ( Ibid .)20

People ha d proved he committed at least one act of “ touching ” M. ’ s vaginal area for

count 2

. He argues touching a victim ’ s vaginal area or body part does not constitute
substantial sexual conduct. He asserts the verdict form for count 2 did not expressly require the jury to make a finding of substantial sexual conduct. He also asserts the jury made no finding that independ e nt evidence corroborated M.’ s allegation.

Defendant ’ s complaints are meritless. On the verdict form for count 2, the jury found true “ that the prosecution of this count began within the required time period, pursuant to Penal Code section 803(f)(1). ” T he court instructed the jurors that in order to find the tolling allegation to be true, they had to find (1) substantial sexual conduct , and (2) independent corroborating evidence by a clear and convincing standard of proof , as follows : “ If the People hav e met their burden of proving beyond a reasonable doubt the crime charged in count 2, then you must decide whether the prosecution for that count began within the required time period, pursuant to Penal Code section 803( f )(1). [¶] The People must prove the following factual allegations by a preponderance of the
evidence

. . . . [¶]

. . . [¶]

. . . [T] wo, the crime involved substantial sexual conduct

. [¶]
Substantial sexual conduct includes penetration of the vagina

. . . of

. . . the victim

. . . by

an y foreign object

. [¶]

. . . [¶] The People must also prove the following allegation by
clear and convincing evidence

. . . . This means, the People must persuade you that it is highly probable that the fact is true

. [¶] Three, there is independent evid ence , not including the opinion of a medical health professional, that corroborates [M.’s] allegation. [¶]

. . . [¶] You will receive a separate finding form on count 2, and you must
decide whether the People began the prosecution of count 2 within the r equired time period. ” 10

10 Because there is no pattern instruction for section 803, subdivision (f)(1), the parties agreed to the text of the instruction given.21 The foregoing instruction was clear and complete. It told the jurors they

were to make a finding on the tolling allegation only if they had already found defendant guilty beyond a reasonable doubt on count 2. It told the jurors the precise requirements
of section 803 , subdivision (f)(1) for determining whether the People had begun prosecuting count 2 within the required time period

.

“ Jurors are presumed able to understand and correlate instructions and are
f urther presumed to have followed the court ’ s instructions. ” ( People v. Sanchez (2001) 26 Cal.4th 834, 852.) We presume the jur y followed CALCRIM No. 1110 in finding defendant guilty of count 2, and followed the specific instruction on the tolling allegat ion in finding the People had timely prosecuted the charge

. The verdict form plainly required
the jurors to make separate findings on count 2 and the tolling allegation.

Defendant next co ntends the court erred with respect to the tolling allegation by instruct ing the jury that t he “ testimony of only one witness can prove any
fact ” ( CALCRIM No. 3 0 1) and that conviction of a sexual assault crime may be based solely on the complaining witness ’ s testimony ( CALCRIM No. 1190 )

. He argues the court erred by failing to include the optional introductory phrase of the pattern
CALCRIM No. 301 instruction , which states, “ Except for the testimony of <insert
witness ’ s name>, which requires supporting evidence

. . . . ” We agree the bette r practice would have been for the court to include this phrase with respect to the tolling allegation

. Nonetheless, “ w e must look to the entire charge, rather than merely one part, to
determine whether error occurred. [Citation.] Looking to the instruc tions as a whole, we find no error. ” ( People v. Chavez (1985) 39 Cal.3d 823, 830

– 831

. ) The jury was instructed that the People were required to prove, clear ly a nd convincing ly (i.e., persuading the jury there was a high probability the fact was true), th at independent
evidence (not including the opinion of a medical health professional) corroborate d M.’s allegation. We presume the jury correctly correlated and followed the court’s
instructions. ( People v. Sanchez , supra , 26 Cal.4th at p. 852.)22 Finally, defendant asserts the jury was provided no guidance on what constituted the independent corroborating evidence on which the prosecution relied. As stated above, the jury was instructed on all of the statutory requirements for independent
corrobor ating evidence set forth in section 803, subdivision (f)(1). Defendant cites no legal authority as to the need for any further “ guidance ” to the jury.

IV. Defendant Has Waived His Prosecutorial Misconduct and Other Contention s I nadequate ly Brief

ed in Section IV of His Opening Brief

Section IV of defendant’s opening brief complains about the prosecutor’s
elicitation of a lleged “bad character evidence” during his cross

- examination of
defendant ’s expert psychologist and closing argument regarding defendant , as well as
about defense counsel’s purported ineffective assistance. But section IV does not address or even acknowledge that Evidence Code section 1101, subdivision (a)’s “ban against admitting character evidence to prove conduct

. . . [citati on]

. . . does not affect the admissibility of evidence regarding the credibility of a witness [citation].” ( Villatoro , supra , 54 Cal.4th at p. 1159; § 1101, subd. (c).) The opening brief does not mention Evidence Code sections 785 ( witness ’s credibility may be attacked by any party ), 721, subdivision (a)(3) ( expert witness may be fully cross

- examined on the basis and reasons
for opinion ), or 1202 (impeachment of hearsay declarant’s credibility).

The Attorney General contend s section IV of de fendant ’ s opening “ brief alleging, in ‘ kitchen sink ’ fashion, prosecutorial misconduct, ineffective assistance of defense counsel, the failure to give character evidence instructions, introduction of irrelevant evidence and the violation of [his] due proce ss rights fails to comport with the
rules of court and should be stricken. ”23 The Attorney General is correct that d efendant has waived the purported

errors alleged in section IV of his opening brief. A court may treat an inadequately argued contention “ as waived, and pass it without consideration. ” ( People v. Stanley , supra , 10 Cal.4th at p. 793; Cal. Rules of Court, rule 8.204(a)(1)(B).)

V. There is No Cumulative Error

Defendant asserts that, due to cumulative error, he was prejudiced and the judgment must be reversed. As discussed above, his allegations of error are without merit; therefore, there is no cumulative effect to consider.

VI. The Abstract of Ju dgment Must Be Corrected

Finally, the Attorney General correctly points out the abstract of j udgment
fails to indicate that the court sentenced defendant to consecutive terms of 15 y ears to life
on counts 1 and 3. When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pron ouncement
controls. ( People v. Walz (2008) 160 Cal. App.4th 1364, 1367 , fn. 3 .) Accordingly, the
abstra ct of judgment must be amended

.24 DISPOSITION

The trial court is directed to prepare an amended abstract of judgment reflecting that the court sentence d defendant to consecutive terms of 15 years to life on
counts 1 and 3 , and a consecutive six

- year term on count 2, and is directed to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is aff

irmed.

IKOLA, J.

WE CONCUR:

O ’ LEARY, P. J.

BEDSWORTH, J.