Filed 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered 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

Appeal from a judgment of the Superior 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 substantial 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) as to count 2, the statute of limitations was tolled (§ 803, 

subd. (f)(l )). The 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 discretion 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 propensity evidence; (3) the 

statute of limitations on count 2 was not tolled and the jury was improperly instructed on

tolling; (4) the prosecutor committed misconduct; and (5) the errors were cumulatively 

prejudicial. The People contend the abstract of judgment must be corrected. We agree 

with the People’s contention. In all other respects, 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

Count 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 his house.

When K.C. was in the second grade, she went into the restroom during a 

family party and closed the door. She was sitting on the toilet when defendant came in. 

He said, “Oh, don’t worry. Just keep on doing your business.” He 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 she wanted to show him her underwear. She 

said, “No.” “He kept persisting or asking her to show him.” He asked what color “they 

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

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

About 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. Defendant came in. He had her bend over the toilet with 

her hands on the toilet seat. He was behind her. Her legs were spread apart. Defendant 

put his fingers in and out of her vagina for less than one minute, while asking her “if it 

felt good.” K.C. said, “No.” He stopped, washed his hands, and went 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 in 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. Defendant drove the children to a school carnival 

with K.C. in the front passenger seat and her brother in the back seat. Defendant asked

K.C. to keep what had happened “a secret between us.”
4

Later, every time she saw defendant, she would remember what happened. 

She 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 — she wrote about boys, her family, what 

she did with her friends, and anything 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.” In another section 

she wrote, “Does that feel good?” “But it didn’t feel good.” She drew 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 the 

princess crown underwear 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 afraid to tell her parents because she “knew 

how close [her] dad was with [defendant], how close [her] family was with him, how

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 defendant’s second cousin. Other cousins were at the 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 departed, leaving defendant and M. alone. Defendant flirted 
5

with M. He told her he was 27, twice her age. Defendant began to grope and kiss M. He 

kissed her breasts through her shirt. He 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 

defendant 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. Over 17 years later, M.’s friend contacted 

her via Facebook in June 2012 and gave 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, and 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 younger brother went to the downstairs living room to look at the dogs. N.’s brother 

was sitting on a couch, paying attention to the dogs.

N. and defendant were behind the couch. Defendant was kneeling on one 

knee and “sat [N.] on his lap.” N. was wearing light blue skorts (combination skirt with 

shorts) adorned with Tinkerbell on the side that went to her mid-thigh.

Defendant rubbed N.’s knee. He started going higher and began rubbing 

the inside of N.’s leg under her skirt but over her shorts. N. felt uncomfortable, so she 

“got up like if nothing happened, everything was all right, and just talked to him about 

the dogs.”
6

That night, defendant went into N.’s bedroom as she was going to sleep. 

He turned on the light and closed the door. He sat on N.’s bed and they “were just 

talking.” She had changed into black sweats. He put his hand under the blanket and 

started rubbing her leg over her sweats. She pushed his hand away more than once, but 

he kept putting his hand back.

N. felt scared, so she said 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 told her mother she was scared to sleep by herself. She did 

not tell her mother about what had happened because she felt her mother “wouldn’t think 

it was important or . . . that [defendant] meant it 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. The 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 took 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 defendant driving to 

her right and telling her to pull over. She pulled into a McDonald’s restaurant parking 

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, tried to kiss 
7

her, and put his arms around her. He stuck his tongue in her mouth. R.A. felt very 

uncomfortable. R.A. jumped in her car, locked the 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 Admitted Evidence of Defendant’s Uncharged Conduct with R.A.

 and Properly Instructed the Jury on Such Evidence

Defendant argues the court should have excluded evidence of his encounter 

with R.A. He further argues that, even if the evidence was properly admitted, the court 

erroneously instructed the jury with modified CALCRIM Nos. 1191, 1122, and 370.

3

A. Admission of Uncharged Conduct Under Evidence Code Section 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 would customarily kiss her and 

other people on the lips as a form of greeting. Defendant has waived this contention by 

failing to include reasoned argument on a court’s sua sponte duty to give a unanimity 

instruction with respect to uncharged conduct. (People v. Stanley (1995) 10 Cal.4th 764, 

793; Cal. Rules of Court, rule 8.204(a)(1)(B).) But without 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 Supreme Court in People v. Ghant (1987) 3 

Cal.3d 739, 773-774. 
8

victims, the age difference between her and defendant was greater, 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 Evidence Code section 402 hearing, the People requested the 

admission of evidence of two different incidents concerning R.A. One was the encounter 

where defendant and R.A. pulled over after seeing each other driving. The second 

involved multiple incidents at family functions where 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 relevant 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 the jury. The court stated it had considered 

the factors and analysis under People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).

The 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 the second group of incidents.

Evidence Code section “1108 is an exception to the general prohibition 

against admitting character evidence to prove criminal disposition or propensity.” 

(People v. Jandres (2014) 226 Cal.App.4th 340, 352 (Jandres)). Evidence of the 

defendant’s commission of an uncharged “sexual offense” is admissible under Evidence 

Code section 1108 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 definition 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 defines “‘[s]exual offense’” to include

annoying or molesting a child under 18 years of age in violation of section 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 facts 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 showed R.A. was younger than 18 

years of age at the time of the driving incident. To the extent defendant challenges the 

court’s conclusion at the Evidence Code section 402 hearing that the People’s proffered

evidence could support a jury finding he violated section 647.6, his challenge lacks merit. 

At the hearing, the prosecutor argued R.A. was 17 years old when the incident occurred;

defense counsel stated R.A. was at least 17 years of age at that 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 attempts 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 second 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]he 
10

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 Evidence 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 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.” (Falsetta, supra, 21 Cal.4th at p.

917.) The 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 intent 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 conduct with R.A. was vague and dissimilar to 

the charged offenses, and excluded the evidence. The court’s admission of the 

challenged evidence was neither arbitrary, capricious, nor absurd.

Defendant’s argument the R.A. incident was dissimilar to the charged 

offenses is unpersuasive. Both R.A. and M. had no family relationship to defendant. 

Defendant was about 17 years older than R.A., and about 11 years older than M.

4

 The 

R.A. incident happened in a parking lot, the M. incident in a carport area. The 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 old 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 differences between the two 

offenses [included] 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 court erred by failing 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 18 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 inclined 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 conclusion 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 beyond a reasonable doubt.”

Over defense counsel’s initial objection, this modified version of 

CALCRIM No. 1191 given by the court omitted the second and third paragraphs of the 

pattern instruction. Those omitted paragraphs would have provided: “You may consider 

this evidence only if the People have proved by a preponderance of the evidence that the 

defendant in fact committed the uncharged offenses. Proof by a preponderance of the 

evidence is a different burden of proof from proof beyond a reasonable doubt. 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 court instructed the jury with the following modified version of 

CALCRIM No. 1122 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, the defendant engaged in conduct directed at a child; [¶] 

Two, a normal person, without hesitation, would have been disturbed, irritated, offended, 

or injured by the defendant’s conduct; [¶] Three, the defendant’s conduct was motivated 

by an unnatural or abnormal sexual interest in the child; [¶] and four, the 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.”

This modified version of CALCRIM No. 1122 given by the court omitted 

the following optional 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 if 
13

(he/she) 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 People 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 

principles 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 decided defendant “committed one or more of these 

offenses beyond a reasonable doubt,” it could consider such offense(s) as propensity 

evidence. Thus, the modified version actually raised the standard of proof as to 

defendant’s uncharged offense concerning R.A., from 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 court 
14

stated, “We don’t have anything about a good faith belief.” The defense theory of the 

case was that defendant did not kiss R.A. as she described. This theory was inconsistent 

with an 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 instructing 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 that a defendant’s conduct be motivated 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 pay careful attention to all the 

instructions and consider them together. Jurors are presumed to understand, correlate,

and 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 crimes 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 court failed to conduct an Evidence Code section 352 analysis before 

instructing the jury with the modified 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 been 17, 18, or even 19 years old.
15

With respect to K.C. and M., defendant claims the court gave an incomplete unanimity 

instruction.

7

In Villatoro, supra, 54 Cal.4th at pages 1164-1165, our 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 352 (Villatoro, 

supra, 54 Cal.4th at p. 1163), he need not “‘expressly weigh prejudice against probative 

value — or even expressly state 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.) For 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 the “‘trial 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 implicitly 

conducted [an Evidence Code] section 352 analysis.” (Ibid.)

Here, based on the court’s express 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 at p. 1183.)

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

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

contends the court erred by omitting 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 you 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 instructed 

the jury with CALCRIM Nos. 3502 and 3500 as follows: “The defendant is 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 People have proved 

that the defendant committed at least one act of touching [K.C.’s] vaginal 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 find the defendant guilty unless you all 

agree that the People have proved that the defendant committed at least one [of] these 

acts and you all agree on which act he committed.” (CALCRIM No. 3500.)
17

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

Defendant 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 finding 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 

instructions conflicted with the requirement that M.’s testimony be corroborated.

A. The Statute of Limitations was Tolled Under Section 803, Subdivision 

 (f)(1)

The statute of limitations for a violation of section 288, subdivision (a), is 

six years. (§§ 288, subd. (a), 800; People v. Smith (2011) 198 Cal.App.4th 415, 424.) In 

an amended complaint filed on July 16, 2012, the People alleged defendant committed 

section 288, subdivision (a) offenses upon M. between September 9, 1992 and September 

8, 1993. 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 independent 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’s 
18

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 (not including opinions of mental health 

professionals) corroborates the allegation and, if the victim was at least 21 years old 

when reporting 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 information 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 . . . information [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 other 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 the “limitation 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, defendant’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 testified, 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, count 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 the court instructed the jurors they had to unanimously agree that the 

 

9

Defendant contends the tolling allegation “changed” the charged offense 

because section 803, subdivision (f)(1) “added the requirement [of] substantial sexual 

conduct that had to be proved by independent corroborating evidence” by clear and 

convincing proof. Although defendant “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.)

In 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 preliminary examination.” (Ibid.)
20

People had 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 independent 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).” The 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 have 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 

any 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 evidence, 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 required 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 

further presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 

26 Cal.4th 834, 852.) We presume the jury followed CALCRIM No. 1110 in finding 

defendant guilty of count 2, and followed the specific instruction on the tolling allegation

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 contends the court erred with respect to the tolling 

allegation by instructing the jury that the “testimony of only one witness can prove any 

fact” (CALCRIM No. 301) 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 better practice 

would have been for the court to include this phrase with respect to the tolling allegation. 

Nonetheless, “we must look to the entire charge, rather than merely one part, to 

determine whether error occurred. [Citation.] Looking to the instructions 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, clearly and convincingly (i.e., 

persuading the jury there was a high probability the fact was true), that independent 

evidence (not including the opinion of a medical health professional) corroborated 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

corroborating 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 Contentions

 Inadequately Briefed in Section IV of His Opening Brief

Section IV of defendant’s opening brief complains about the prosecutor’s 

elicitation of alleged “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 . . . [citation] . . . 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 contends section IV of defendant’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 process rights fails to comport with the 

rules of court and should be stricken.”
23

The Attorney General is correct that defendant 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 Judgment Must Be Corrected

Finally, the Attorney General correctly points out the abstract of judgment

fails to indicate that the court sentenced defendant to consecutive terms of 15 years 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 pronouncement 

controls. (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) Accordingly, the 

abstract of judgment must be amended.
24

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment

reflecting that the court sentenced 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 affirmed.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.