Filed 3/14/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ANTONIO LOPEZ,

Defendant and Appellant.

B317228

(Kern County 

Super. Ct. No. BF131896A)

APPEAL from a judgment of the Superior Court of Kern

County, Stephen Schuett, Judge. Affirmed with directions. 

Hilda Scheib, under appointment by the Court of Appeal,

for Defendant and Appellant.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of (1) parts B and C of the Factual and Procedural Background 

(however, the headings for parts B and C of the Factual and 

Procedural Background are to be published); (2) parts A and B of 

the Discussion (however, the headings for parts A and B of the 

Discussion are to be published); and (3) all numbered 

subheadings.
2

Xavier Becerra and Rob Bonta, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General, Michael P. 

Farrell, Senior Assistant Attorney General, Louis M. Vasquez, 

Supervising Deputy Attorney General, and Lewis A. Martinez, 

Jennifer Oleska, and Ian Whitney, Deputy Attorneys General, for 

Plaintiff and Respondent. 

__________________________

INTRODUCTION

Jose Antonio Lopez fled to Mexico after his two stepgranddaughters accused him of sexually abusing them. Eight 

years later Lopez was arrested in California. A jury convicted 

Lopez on two counts of continuous sexual abuse of a child—one 

for each step-granddaughter—and the trial court sentenced him

to two consecutive terms of 15 years to life. 

Lopez contends that the delay in prosecution violated his 

rights to a speedy trial, that substantial evidence did not support 

either conviction, and that the court did not understand it had 

discretion to impose concurrent sentences on the two convictions. 

In the unpublished portion of the opinion, we conclude that the 

trial court did not violate Lopez’s speedy trial rights and that 

substantial evidence supported his convictions. In the published 

portion, we conclude the trial court had discretion under Penal 

Code section 667.61, subdivisions (c) and (i),1 to impose 

concurrent sentences. Therefore, we affirm the convictions on 

both counts of continuous sexual abuse of a child, vacate the 

sentences on those convictions, and direct the trial court to 

1 Statutory references are to the Penal Code.
3

exercise its discretion whether to impose consecutive or 

concurrent sentences on those convictions. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Lopez Is Arrested Eight Years After His Stepgranddaughters Accuse Him of Sexual Abuse

Karen R. is the mother of Daniela C. and Rebecca C. Lopez 

was Karen’s stepfather and, thus, Daniela and Rebecca’s stepgrandfather. In February 2010 Karen reported to the Bakersfield 

Police Department that Lopez had sexually abused Daniela, who 

was eight years old at the time, and Rebecca, who was six. 

Officer Felipe Juarez interviewed Daniela and Rebecca, each of 

whom told the officer that Lopez had touched her vaginal area 

and buttocks. 

On February 17, 2010 Karen made a “pretext call”—a call 

monitored by law enforcement and intended to elicit 

incriminating information—to Lopez, accusing him of abusing 

Daniela and Rebecca. Detectives Lance O’Nesky and Hector 

Caldas interviewed Lopez later that day and informed him of the 

nature of their investigation. Sometime between then and

March 8, 2010, Lopez went to Mexico. 

In April 2010 the People filed a complaint charging Lopez 

with two counts of continuous sexual abuse of a child under the 

age of 14, in violation of Penal Code section 288.5, subdivision (a): 

count 1 for sexual abuse of Daniela and count 2 for sexual abuse 

of Rebecca. The superior court issued a warrant for Lopez’s 

arrest. 

Lopez was not arrested until August 6, 2018. On 

August 28, 2018 the People filed an information charging Lopez 
4

with the same two counts of continuous sexual abuse of a child. 

For each count, the People alleged Lopez committed an offense 

specified in section 667.61, subdivision (c)—which includes 

continuous sexual abuse of a child (§ 667.61, subd. (c)(9))—

against more than one victim (see id., subd. (e)(4)).2 Whether a 

true finding on that allegation required the court to impose 

consecutive terms is one of the issues in this appeal.

B. Lopez Files a Motion To Dismiss, Which the Trial 

Court Denies

Lopez filed a motion to dismiss the charges, contending the 

People violated his speedy trial and due process rights by waiting 

eight years to arrest and arraign him. Lopez filed a declaration 

stating he did not visit Daniela and Rebecca’s home in January or 

February 2010, when some of the abuse allegedly occurred. He

argued the delay in bringing the case to trial prejudiced him 

because, after a diligent search, he was unable to locate two 

former co-workers whose testimony would have corroborated his 

testimony or obtain records from a former employer that would 

have supported his defense. 

Lopez also stated in his declaration that in February 2010 

he gave law enforcement his home address in Bakersfield and his 

phone number. He said that he resided at the Bakersfield

address “for at least a year or two after February of 2010, and 

had the same phone number for even longer,” but that law 

enforcement never contacted him to follow up on the 

2 The People also charged Lopez with two counts of willfully 

and lewdly committing a lewd or lascivious act on a child under 

the age of 14, in violation of section 288, subdivision (a). The jury 

found Lopez not guilty on those counts. 
5

investigation. Lopez stated: “At some point I went to Mexico, 

however, this was years later and had nothing to do with 

avoiding criminal prosecution.” 

At the hearing on the motion to dismiss, Lopez admitted on 

cross-examination that in fact he went to Mexico in March 2010,

within a few weeks after the detectives informed him of the

investigation. According to Lopez, he returned to the United 

States in June 2014. Detective O’Nesky testified Karen told him 

in March 2010 that Lopez went to Mexico and that he intended to 

stay there for at least a year. 

The court denied the motion to dismiss. The court found 

Lopez “fled to Mexico once he was accused, which doesn’t bode 

well for him.” The court also stated that, although law 

enforcement could have done more to locate Lopez, there was no 

prejudice from the delay because “we don’t know what his coworkers would say.” 

C. The Family Testifies at Trial

1. Karen Learns Lopez Abused Her Daughters

Karen testified that in 2010 she lived in a house with 

Daniela, Rebecca, and her other children. Between 2006 and 

February 2010 Lopez babysat Karen’s children two to three times 

a month, occasionally spending the night. In February 2010 

Daniela and Rebecca told Karen that Lopez had abused them. 

2. The Jury Hears Evidence of Daniela’s Abuse

Daniela, who was 17 years old when she testified at trial, 

stated Lopez abused her when she was seven and eight years old. 

Although she could not recall all the details of the abuse, she 
6

testified that on approximately five different occasions Lopez 

rubbed her vagina over her clothes with his hands and that on

two to four occasions he touched her buttocks. Daniela also said 

Lopez touched her chest, but she could not remember how many 

times. In addition, Daniela testified that on one occasion she saw 

Lopez without “his clothes on.” When asked how long Lopez 

abused her, Daniela said, “About five months.” She said she 

never saw Lopez again after she reported the abuse. Daniela 

testified that she was nervous and uncomfortable talking about

the case and that she did not want to testify because it “happened 

a long time ago and [she] put it past [her].”

Officer Juarez testified that when he interviewed Daniela 

in 2010 she stated Lopez touched her “pee pee area” and “butt 

area,” both over her clothes and directly on her skin. The People 

also introduced the transcript of an interview with Daniela that 

Detective Caldas conducted in September 2018, shortly after 

Lopez was arrested. In that interview Daniela’s description of 

the abuse was similar to her testimony at trial, but in the 

interview Daniela stated Lopez had rubbed her vagina under her 

clothing. In the interview she also described an incident she did 

not testify about at trial, where Lopez took off Daniela’s

underwear and put Daniela’s hand on his penis. At trial Daniela 

testified she told the truth during the interviews. 

3. The Jury Hears Evidence of Rebecca’s Abuse

Rebecca, who was 15 years old when she testified at trial, 

remembered three specific incidents, which she described as the 

“traumatic” and “main” instances of abuse. In the first incident 
7

Lopez got a blanket, put it over him and Rebecca, and rubbed 

Rebecca’s chest area over her clothes. 

In the second incident Lopez took Rebecca to her bedroom, 

told Rebecca’s brother (who had followed them) to leave, and 

locked the door. Lopez removed his pants, told Rebecca to 

remove her clothes, and tried to remove Rebecca’s skirt. Rebecca 

resisted and said, “No, I want to keep it on.” Daniela knocked on 

the door, asked what they were doing, and said she was going to 

get the keys to the bedroom. Lopez “freaked out” and put his 

pants back on before anything else happened. 

In the third incident, Lopez and Rebecca were lying on the 

floor with a blanket over them, watching television. Lopez 

started rubbing Rebecca’s chest and vagina over her clothes. 

Lopez put Rebecca’s hand on his penis, also over his clothes. The 

incident lasted five to 10 minutes. Rebecca testified that, after 

she reported the abuse, she saw Lopez once in 2016 outside her 

house, but otherwise did not see him until August 2018. 

Rebecca did not remember the details of other instances of 

abuse, but she testified that Lopez touched her vagina “a lot” of 

times and that she touched his penis more than once. Officer 

Juarez testified that, when he interviewed Rebecca in 2010, 

Rebecca stated Lopez touched her vaginal area over her clothes

approximately five times. The People also introduced the 

transcript of an interview of Rebecca that Detective O’Nesky 

conducted in March 2010. During that interview Rebecca stated 

Lopez grabbed her hand and placed it on his penis, over his 

clothes, about 20 different times. Although Rebecca did not 

remember her 2010 interviews with Officer Juarez and Detective

O’Nesky, she remembered that in 2010 she spoke to law 

enforcement about what happened and that she told the truth. 
8

Rebecca initially testified the abuse went on for a “couple”

of months, but then described a “couple” of months as “three or 

four.” In addition, when the prosecutor asked her to estimate 

how much time passed between the first and last incident, she 

stated that it was “just a couple” of months; then that it was

“more than two, so three” months; and finally that it was “a good 

two, three months . . . from the first time to the last.” 

4. Lopez Testifies in His Defense

Lopez denied he ever touched Daniela or Rebecca sexually 

or inappropriately or forced them to touch him sexually or 

inappropriately. He also denied he ever took Daniela or Rebecca 

into a bedroom alone. 

Lopez testified that in 2010 he was dating a woman named 

Silvia and in that year moved to Mexico to marry her.3 Silvia did 

not accompany him to Mexico, but later met him there. Lopez 

admitted that he left his children, grandchildren, and job behind 

in the United States when he went to Mexico and that he did not 

see his children again until he returned to the United States in 

June 2014. He stated his decision to go to Mexico had nothing to 

do with the accusations against him. 

D. The Jury Convicts Lopez, and the Trial Court 

Sentences Him

The jury convicted Lopez on both counts of continuous 

sexual abuse of a child and, for each count, found true the 

allegation Lopez committed an offense specified in section 667.61, 

3 Lopez explained that he was undocumented in 2010 and 

that he was told “it would be better” to get married in Mexico 

than in the United States to avoid potential punishment. 
9

subdivision (c), against more than one victim, within the meaning 

of section 667.61, subdivision (e)(4). The trial court sentenced 

Lopez to consecutive prison terms of 15 years to life. Lopez 

timely appealed. 

DISCUSSION

A. The Trial Court Did Not Violate Lopez’s Speedy Trial 

Rights

1. Applicable Law and Standard of Review

Article I, section 15 of the California Constitution 

guarantees a criminal defendant the right to a speedy trial. 

(See People v. Cowan (2010) 50 Cal.4th 401, 430.) The “speedy 

trial guarantee under the state Constitution is triggered by the 

filing of a felony complaint. . . . [S]uch a violation may be 

premised ‘on delay occurring after the filing of the complaint and 

before the defendant was held to answer the charge in superior 

court.’” (People v. DePriest (2007) 42 Cal.4th 1, 27 (DePriest), 

italics omitted; see People v. Horning (2004) 34 Cal.4th 871, 895

(Horning)).4

Where, as here, “‘a defendant seeks dismissal based on 

delay after the filing of the complaint and before indictment or 

4 Lopez does not argue the trial court violated his right to a 

speedy trial under the Sixth Amendment to the United States 

Constitution. (See DePriest, supra, 42 Cal.4th at p. 26 [“[i]t is 

settled that . . . [t]he filing of a felony complaint does not trigger 

federal speedy trial protection” under the Sixth Amendment

because “the Sixth Amendment requires ‘formal accusation in the 

court with jurisdiction over the prosecution of the charge’ . . . or 

‘arrest with continuing restraint’ on such charge”].)
10

holding to answer on felony charges, a court must weigh “the 

prejudicial effect of the delay on defendant against any 

justification for the delay.” [Citations.] No presumption of 

prejudice arises from delay after the filing of the complaint and 

before arrest or formal accusation by indictment or information 

[citation]; rather, the defendant seeking dismissal must 

affirmatively demonstrate prejudice.’” (DePriest, supra, 

42 Cal.4th at p. 27; see People v. Lowe (2007) 40 Cal.4th 937, 942; 

Horning, supra, 34 Cal.4th at p. 895.) 

“Whether preaccusation delay is unreasonable and 

prejudicial to a defendant is a question of fact.” (People v. 

Mirenda (2009) 174 Cal.App.4th 1313, 1330.) “‘We review for 

abuse of discretion a trial court’s ruling on a motion to dismiss for 

prejudicial prearrest delay [citation], and defer to any underlying 

factual findings if substantial evidence supports them.’” (People 

v. Jones (2013) 57 Cal.4th 899, 922; see People v. Garcia (2014) 

223 Cal.App.4th 1173, 1177; Mirenda, at p. 1330.)

2. Substantial Evidence Supported the Trial 

Court’s Finding That the Delay Did Not 

Prejudice Lopez 

Lopez contends that, contrary to the trial court’s finding he 

failed to show prejudice, he “made a credible showing that he 

would have been able to establish an alibi” through the testimony 

of two former co-workers he could no longer locate. Substantial 

evidence, however, supported the trial court’s finding.

To show prejudice, “a defendant claiming a speedy trial

violation under the California Constitution must show that the 

delay has impaired the ability to defend against the charged 

crime because, for instance, a witness has become unavailable, 
11

evidence has disappeared, or the memory of a potential witness 

has faded.” (People v. Lowe, supra, 40 Cal.4th at p. 945, 

fn. omitted.) But “speculation about prejudice . . . because 

witnesses and evidence are now unavailable is insufficient to 

discharge defendant’s burden. [Citation.] A particular factual 

context must be established in which a specific claim of prejudice 

can be evaluated.” (Shleffar v. Superior Court (1986) 

178 Cal.App.3d 937, 946.)

The trial court did not err in ruling Lopez failed to meet his 

burden to establish a specific factual context showing prejudice. 

Lopez argued primarily that, but for the People’s delay, he could 

have presented evidence he did not abuse Daniela and Rebecca

on a specific date—February 8, 2010. Lopez argued in his motion 

that the People alleged he committed abuse “on a specific date 

(2/8/2010)” and that he did not visit the home of Daniela and 

Rebecca at that time. And counsel for Lopez stated in a 

supporting declaration he was unable to obtain employment 

records or cell phone records from “on or around” February 8, 

2010 or speak to family members who could “say with any 

certainty where [Lopez] was, or went, on that specific date.” 

But the People did not have to prove—indeed, did not 

attempt to prove—Lopez abused Daniela or Rebecca on 

February 8, 2010 or any other specific date. The People alleged 

that Lopez abused Daniela at least three times between 

October 23, 2006 and February 8, 2010 and that he abused 

Rebecca at least three times between October 28, 2008 and 

February 8, 2010. And the People presented evidence he abused 

them multiple times over a five-month period, not necessarily on 

February 8, 2010. Thus, evidence of where Lopez was and what 

he was doing on February 8, 2010 was not particularly probative 
12

of whether he sexually abused his step-granddaughters three or 

more times between October 23 or 28, 2008 and February 8, 2010. 

(See People v. Jones, supra, 57 Cal.4th at p. 923 [trial court did 

not err in finding the defendant’s claimed loss of “two ‘important’ 

witnesses” because of a delay in filing charges did not prejudice 

the defendant where the People had a strong case and it was 

unclear the witnesses would have been available to testify]; 

Horning, supra, 34 Cal.4th at p. 894 [defendant failed to show 

any particularized prejudice from his inability “to locate certain 

alleged witnesses” where “he failed to show that any of these 

persons were relevant to the case or could help him in any way”].)

Lopez contends that the two witnesses he identified could 

have corroborated his testimony he was working seven days a

week in January and February 2010 and that therefore he did 

not see Daniela or Rebecca during those two months. In his 

declaration Lopez identified two former co-workers whom he 

“usually socialized” with “after work” and who, according to 

Lopez, “would most likely have been able to vouch for [his]

whereabouts on any given day and time . . . .” But again, 

whether Lopez worked seven days a week during two of the 

months the People alleged he abused Daniela and Rebecca was 

not particularly helpful to his defense. Lopez did not explain why 

it was impossible or even unlikely for him to have babysat

Daniela or Rebecca on a day he worked. And it was highly 

improbable that two witnesses could have accounted for Lopez’s 

whereabouts for nearly all of January and February 2010.

(See People v. Lewis (2015) 234 Cal.App.4th 203, 213 [the 

“Supreme Court has repeatedly found speculative arguments 

inadequate to establish the actual prejudice required for delayed 

prosecution to constitute a due process violation”]; Shleffar v. 
13

Superior Court, supra, 178 Cal.App.3d at p. 947 [defendant failed 

to show prejudice where she “failed to establish by any competent 

evidence, as opposed to speculation, surmise or conjecture, that 

her ability to prepare a defense has been prejudiced”].) 

Lopez’s argument on prejudice also suffers from a more 

fundamental flaw. The only evidence Lopez submitted on the 

issue of prejudice was his testimony that he worked seven days a

week and that two co-workers would have provided corroborating 

testimony. The trial court, however, did not have to find Lopez’s 

statements were credible. (See People v. Hannon (1977) 

19 Cal.3d 588, 609 [in evaluating whether the prosecution 

violated the defendant’s speedy trial rights, “the trial court was 

not obliged to accept defendant’s uncorroborated assertion that 

he resided with his parents”].) And there were serious questions 

about Lopez’s credibility. Lopez stated in his declaration he did 

not move to Mexico until “years” after the police informed him 

that Daniela and Rebecca had accused him of abuse—presumably 

to show the prosecution unreasonably delayed before arresting 

him. At the hearing on his motion, however, Lopez admitted it 

was not really “years”—it was closer to days (or, at most, a couple 

of weeks).

3. The Trial Court Did Not Err in Ruling the 

Justification for Delay Outweighed Any 

Prejudice to Lopez

Even if Lopez had shown he suffered some nonspeculative 

prejudice, the trial court did not err in ruling the reason for the 

delay—Lopez’s decision to flee—outweighed any such prejudice. 

Pretrial delay may be justified where the defendant’s actions 

contribute to the delay, particularly where the defendant flees 
14

the state to avoid prosecution. (See DePriest, supra, 42 Cal.4th at 

p. 28 [delay between the filing of the complaint and the trial was 

justified where the defendant fled to another state]; Horning, 

supra, 34 Cal.4th at p. 895 [delay in bringing the defendant to 

trial was “especially” justified while the defendant was in hiding

in another state].)5 

The trial court found Lopez fled to Mexico after Detectives 

Caldas and O’Nesky told him that they were investigating claims 

against him of sexual abuse. Substantial evidence supported the 

trial court’s finding. As discussed, Lopez initially stated he did 

not move to Mexico for years, but he later admitted he moved to 

Mexico within a couple of weeks after the detectives interviewed 

5 Some courts have held a “‘defendant who flees the 

jurisdiction of a court for the purpose of avoiding prosecution 

waives the right to a speedy trial.’” (People v. Garcia, supra,

223 Cal.App.4th at p. 1178; see People v. Perez (1991) 

229 Cal.App.3d 302, 308.) Other courts, however, “have found 

that a defendant’s flight is simply one of several pertinent factors 

which must be considered as part of the court’s speedy trial 

inquiry,” at least under the United States Constitution. (People 

v. Hsu (2008) 168 Cal.App.4th 397, 404-405, disapproved on 

another ground in K.R. v. Superior Court (2017) 3 Cal.5th 295, 

313, fn. 10; see Doggett v. United States (1992) 505 U.S. 647, 656 

[112 S.Ct. 2686, 120 L.Ed.2d 520] [the “government may need 

time” to locate a defendant who “goes into hiding,” which would 

be entitled to “great weight” in a court’s determination of whether 

the government violated a defendant’s speedy trial rights].) The 

People do not cite Garcia or Perez or argue Lopez waived his 

speedy trial rights. At a minimum, the trial court properly 

considered Lopez’s flight as a factor in determining whether the 

reasons for the delay outweighed the prejudice to Lopez.
15

him. The chronology indicates Lopez fled after, and because of, 

the allegations against him.

Lopez argues the trial court’s finding on flight was 

erroneous because the People did not file the complaint until 

April 2010, after he was already in Mexico. But the record shows

Lopez knew he was a suspect and charges were likely coming. 

The People submitted the transcript of the detectives’ February 

2010 interview with Lopez. During the interview, Detective 

Caldas attempted to elicit a confession from Lopez, while Lopez 

maintained he had not abused Daniela or Rebecca. At the 

conclusion of the interview, Detective Caldas told Lopez, “You’re 

a suspect of molesting children” and “I’ll call you later and I’ll tell 

you how this . . . case is going.” Even if Lopez’s speedy trial right

under the California Constitution had not yet attached when he 

fled in March 2010, there was substantial evidence that Lopez

fled California to avoid prosecution and that his flight 

contributed to the prearrest delay. (See DePriest, supra, 

42 Cal.4th at p. 28 [defendant’s flight to another state justified

the prosecution’s pretrial delay, even though the prosecution did 

not file the complaint until after the defendant was in the other 

state].)

Lopez also argues he had to show only minimal prejudice 

from the delay because the prosecution did “absolutely nothing 

toward locating [him] or informing him of the charges against 

him.” The factual premise of his argument is not correct. An 

officer with the Bakersfield Police Department testified the court 

issued a warrant for Lopez’s arrest on April 29, 2010. The officer

entered the warrant on the California Law Enforcement 

Telecommunications System network (CLETS), which would 

have notified any law enforcement officer in California who ran a 
16

record check on Lopez of the warrant. True, as the trial court 

found, the People could have taken more steps to bring Lopez to 

trial sooner, such as attempting to locate Lopez in Mexico after 

he fled. But the People did not have to show such heightened 

diligence. As discussed, the issue is whether the prejudice to 

Lopez outweighed the justification for the delay. Because Lopez 

showed, at most, minimal prejudice, and because Lopez was 

largely responsible for the delay, the trial court did not err in 

denying the motion. (Cf. Horning, supra, 34 Cal.4th at p. 894 [no 

violation of the defendant’s speedy trial rights where the 

“[d]efendant’s actions contributing to the delay,” including “going 

into hiding,” were “far more blameworthy than any governmentcaused delay”].)6

6 Lopez contends the delay also violated his due process 

rights under the state and federal constitutions. The “‘right of 

due process protects a criminal defendant’s interest in fair 

adjudication by preventing unjustified delays that weaken the 

defense’ . . . ‘[even] before the accused is arrested or the 

complaint is filed . . . .’” (People v. Nelson (2008) 43 Cal.4th 1242, 

1250.) But the “test of a state constitutional speedy trial 

violation and a state constitutional due process violation 

converge, so ‘“regardless of whether defendant’s claim is based on 

a due process analysis or a right to a speedy trial not defined by 

statute, the test is the same, i.e., any prejudice to the defendant 

resulting from the delay must be weighed against justification for 

the delay.”’” (People v. Contreras (2009) 177 Cal.App.4th 1296, 

1305; see People v. Martinez (2000) 22 Cal.4th 750, 767; see also 

Nelson, at p. 1251 [while “the exact standard under [the United 

States] Constitution is not entirely settled,” the “law under the 

California Constitution is at least as favorable for defendant . . . 

as the law under the United States Constitution”].) The People

did not violate Lopez’s federal or state due process rights for the 

same reasons they did not violate his speedy trial rights.
17

B. Substantial Evidence Supported Lopez’s Convictions

for Continuous Sexual Abuse of Daniela and Rebecca

1. Applicable Law and Standard of Review

Section 288.5, subdivision (a), provides: “Any person who 

either resides in the same home with the minor child or has 

recurring access to the child, who over a period of time, not less 

than three months in duration, engages in three or more acts of 

substantial sexual conduct with a child under the age of 14 years 

at the time of the commission of the offense . . . or three or more 

acts of lewd or lascivious conduct . . . with a child under the age 

of 14 years at the time of the commission of the offense is guilty 

of the offense of continuous sexual abuse of a child . . . .” To 

convict a defendant of this crime, the prosecution must prove the 

defendant committed “at least three acts of sexual misconduct 

with the child victim over at least three months . . . .” (People v. 

Rodriguez (2002) 28 Cal.4th 543, 550; see People v. Valenti (2016) 

243 Cal.App.4th 1140, 1158 (Valenti); People v. Mejia (2007) 

155 Cal.App.4th 86, 93-94 (Mejia).)

Lopez challenges the sufficiency of the evidence on the last

element, that he abused Daniela and Rebecca for at least three 

months. To prove the abuse occurred over at least three months,

the “‘prosecution need not prove the exact dates of the predicate 

sexual offenses . . . .’” (Valenti, supra, 243 Cal.App.4th at p. 1158; 

see Mejia, supra, 155 Cal.App.4th at p. 97.) “‘Rather, it must 

adduce sufficient evidence to support a reasonable inference that 

at least three months elapsed between the first and last sexual 

acts. Generic testimony is certainly capable of satisfying that 

requirement, [but] “the victim must be able to describe the 
18

general time period in which these acts occurred (e.g., ‘the 

summer before my fourth grade,’ or ‘during each Sunday morning 

after he came to live with us’), to assure the acts were committed 

within the applicable limitation period.”’” (Valenti, at p. 1158; 

see People v. Jones (1990) 51 Cal.3d 294, 316; Mejia, at p. 97.) 

“‘That is, while generic testimony may suffice, it cannot be so 

vague that the trier of fact can only speculate as to whether the 

statutory elements have been satisfied.’” (Valenti, at p. 1158; 

see Mejia, at p. 97.)

“‘When reviewing a challenge to the sufficiency of the 

evidence, we ask “‘whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.’” [Citation.] Because the sufficiency of the 

evidence is ultimately a legal question, we must examine the 

record independently for “‘substantial evidence—that is, evidence 

which is reasonable, credible, and of solid value’” that would 

support a finding beyond a reasonable doubt.’ [Citation.] In 

doing so, we ‘view the evidence in the light most favorable to the 

jury verdict and presume the existence of every fact that the jury 

could reasonably have deduced from that evidence.’” (People v. 

Navarro (2021) 12 Cal.5th 285, 302; see People v. Morales (2020) 

10 Cal.5th 76, 88.) “‘We must also “accept logical inferences that 

the jury might have drawn from the circumstantial evidence.”’” 

(Navarro, at p. 302; see People v. Flores (2020) 9 Cal.5th 371, 

411.) “We do not question the credibility of a witness’s testimony, 

so long as it is ‘not inherently improbable,’ nor do we reconsider 

the weight to be given any particular item of evidence.” 

(Navarro, at p. 302; see People v. Reed (2018) 4 Cal.5th 989, 

1006.)
19

2. Substantial Evidence Supported Lopez’s

Conviction for Sexually Abusing Daniela

Substantial evidence supported the jury’s finding that 

Lopez abused Daniela over at least three months. Daniela 

testified Lopez touched her vagina five times, her buttocks more 

than once, and her chest. She specifically testified the abuse 

occurred for approximately five months, when she was seven and 

eight years old. She also stated during her 2018 interview with 

Detective Caldas, which occurred immediately after Lopez was 

arrested, the abuse occurred for more than five months. 

Viewing her testimony in the light most favorable to the 

verdict, there was substantial evidence Lopez abused Daniela 

over at least three months. As the Supreme Court has frequently 

stated, “‘unless the testimony is physically impossible or 

inherently improbable, testimony of a single witness is sufficient 

to support a conviction.’” (People v. Brown (2014) 59 Cal.4th 86, 

106; see People v. Elliot (2012) 53 Cal.4th 535, 585; People v. 

Young (2005) 34 Cal.4th 1149, 1181.) Daniela’s testimony was 

neither physically impossible nor inherently improbable. And 

while her testimony about the length of time Lopez abused her 

was generic, she described the general time period during which 

the abuse occurred: over five months while she was seven and 

eight years old. Nothing more was required. (See People v. 

Ramirez Ruiz (2020) 56 Cal.App.5th 809, 832-833 [child’s 

statement to a social worker that the defendant “had penetrated 

her private part with his own the previous Friday and had first 

done so three months earlier” was sufficient to support a 

conviction under section 288.5]; see also People v. Jones, supra, 

51 Cal.3d at p. 316[“Additional details regarding the time, place 
20

or circumstance of the various assaults may assist in assessing 

the credibility or substantiality of the victim’s testimony, but are 

not essential to sustain a conviction.”].)

Lopez contends substantial evidence did not support the 

jury’s finding he abused Daniela for at least three months

because Daniela, when asked by counsel for Lopez whether “a lot” 

of her responses were “guessing,” she responded, “Yeah.” But it 

is not clear Daniela meant she was “guessing” about the length of 

time Lopez abused her. While Daniela had some trouble 

remembering the details of the abuse that occurred years before 

Lopez fled to Mexico and then returned to the United States, she

consistently maintained the abuse occurred for five months—both 

during her trial testimony and during her interview with 

Detective Caldas. The jury reasonably could infer that, while 

Daniela was making an educated guess about some facts, she was 

not guessing about the length of time the abuse occurred. 

(See People v. Salazar (2016) 63 Cal.4th 214, 242 [“‘“‘An appellate 

court must accept logical inferences that the jury might have 

drawn from the evidence even if the court would have concluded 

otherwise.’”’”].)

3. Substantial Evidence Supported Lopez’s

Conviction for Sexually Abusing Rebecca

Substantial evidence also supported the jury’s finding that 

Lopez abused Rebecca over at least three months. Rebecca 

initially testified the abuse occurred for a “long time.” When 

asked by the prosecutor how many months the abuse occurred, 
21

Rebecca responded “about a couple,” which she clarified to mean

“three or four.” 

The prosecutor later asked Rebecca: “From the time of the 

first time you were, we’ll say, touched in a sexual manner, to the 

last time that you were touched, do you think there were more or 

less than three months between those times?” Rebecca 

responded: “I don’t understand that question. I’m sorry.” The 

prosecutor asked the question again, using almost identical 

words, and Rebecca responded, “No.” Rebecca then testified:

“Q: How much time do you think passed between the first 

time he touched you and the last time he touched you sexually?

“A: It was just a couple months.

“Q: Can you give us estimate? Was it more than less than 

two?

“A: It was more than two, so three.

“Q: And do you know— I don’t want you to guess—but do 

you know if it was more or less than three, if you could tell us?

“A: About everything that happened after—

“Q: Correct. From the first touching to the last one?

“A: It was—yeah, a good two, three months that—from the 

first time to the last.”

Lopez argues this testimony showed Rebecca could not 

remember whether the abuse in fact occurred for at least three 

months. The People also admit that at least one incident Rebecca 

described during her testimony was not lewd or lascivious 

conduct under section 288.7 Therefore, according to Lopez, it was 

7 Rebecca testified that, because Lopez was continuing to 

abuse her, she stopped wearing skirts and dresses and started 

wearing pants. Rebecca described an incident where Lopez 
22

speculative for the jury to infer that, when Rebecca testified the 

abuse occurred for two to three months, she was referring to two 

to three months between instances of lewd or lascivious conduct

under section 288.5.

While Lopez identifies some potential weaknesses in the 

People’s evidence, our role is not to determine whether those 

weaknesses could have caused a rational trier of fact to have a

reasonable doubt. As discussed, we ask only “‘“‘whether, after 

viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential element[ ] . . . beyond a reasonable doubt.’”’” (People v. 

Navarro, supra, 12 Cal.5th at p. 302.) And a rational trier of fact 

could have believed Rebecca’s initial testimony that the abuse 

occurred for three to four months over her later testimony that 

the abuse occurred for two or three months. (See People v. 

Collins (2021) 65 Cal.App.5th 333, 345 [“[a]s a general matter, 

juries may accept some parts of a witness’s testimony and reject 

other parts”].) “‘[I]t is for the trier of fact to consider internal 

inconsistencies in testimony’ [citation] and it is for us when 

reviewing for substantial evidence to resolve the inconsistencies 

in favor of the verdict.” (Ibid.; see People v. Brown, supra, 

59 Cal.4th at p. 106 [“‘Resolution of conflicts and inconsistencies 

in the testimony is the exclusive province of the trier of fact.’”].) 

That Rebecca’s testimony was equivocal in part does not change 

the fact it was sufficient to support the verdict. (See People v. 

Smith (2011) 198 Cal.App.4th 415, 427 [“[w]hile it is true that 

there was some contradictory evidence concerning the extent of 

picked her up, asked her why she was wearing pants, and told 

her to change into a skirt. Rebecca did not remember Lopez 

touching her inappropriately during this incident. 
23

defendant’s molestation of Doe when she was eight years old,” 

Doe’s testimony, though “internally inconsistent,” still 

“constituted substantial evidence that defendant’s molestation of 

Doe when she was eight years old involved substantial sexual 

conduct”]; People v. Cortes (1999) 71 Cal.App.4th 62, 73-74 

[substantial evidence supported the defendant’s conviction for 

rape, even though “the victim gave inconsistent and conflicting 

testimony”]; People v. Tereno (1962) 207 Cal.App.2d 246, 251 

[the “‘mere fact that there are contradictions and inconsistencies 

in the testimony of a witness, or that the truth of his evidence is 

open to suspicion, does not render it inherently improbable’”].) 

Resolving any inconsistencies in Rebecca’s testimony in favor of 

the verdict, substantial evidence supported the jury’s finding the 

abuse occurred for at least three months. 

Moreover, there was at least one reason for the jury to find 

Rebecca’s initial estimate of how long the abuse occurred more 

credible: Rebecca was confused when she stated the abuse 

occurred for two or three months. When first asked by the 

prosecutor, Rebecca stated, without apparent hesitation, the 

abuse occurred for three or four months. But when asked

whether there were “more or less than three months” from “the 

first time” she was “touched in a sexual manner to the last time,”

Rebecca, before attempting to answer the question, admitted she 

did not understand it. The jury reasonably could find her initial 

testimony was stronger evidence. (See People v. Myers (1981) 

125 Cal.App.3d 735, 745, fn. 4 [“confusion or lack of clarity on the 

part of a witness does not make that witness’ testimony 

inherently improbable”], disapproved on another ground in 

People v. Wolcott (1983) 34 Cal.3d 92, 101.) 
24

In addition, there was evidence corroborating Rebecca’s 

statement the abuse occurred for three to four months (or 

perhaps longer). Karen testified Lopez generally babysat the 

girls a few times a month for several years. During her 2018 

interview with Detective Caldas, Daniela said that, on days 

Lopez did not abuse her (which Daniela estimated was every

other day Lopez babysat them), she saw Lopez take Rebecca into 

a room. Daniela stated this conduct occurred during the same 

five months Lopez abused her, from which the jury reasonably 

could have inferred Lopez abused Rebecca during the same five 

months he abused Daniela. 

Mejia, supra, 155 Cal.App.4th 86, on which Lopez primarily 

relies, is distinguishable. In that case the jury convicted the 

defendant of abusing the victim between June 1, 2004 and 

September 17, 2004.8 (Id. at p. 93.) The victim testified the 

defendant began abusing her sometime in June, continued 

abusing her through July, and abused her twice in September. 

(Id. at pp. 94-95.) The court in Mejia held the victim’s testimony 

was not substantial evidence the abuse occurred for at least three 

months because “the jury could only speculate that the first 

incident occurred early enough in June to satisfy the 90-day 

requirement expiring on September 17, 2004” and “there was no 

evidence as to when defendant abused [the victim] in September.” 

(Id. at p. 95.) Here, in contrast, Rebecca specifically testified 

8 As stated, section 288.5 applies only where a person 

engages in three or more acts of sexual abuse with a child “under 

the age of 14 years at the time of the commission of the offense.” 

(See § 288.5, subd. (a).) The victim in Mejia turned 14 on 

September 18, 2004. (Mejia, supra, 155 Cal.App.4th at p. 94.)
25

Lopez abused her for three to four months. And as discussed, 

there was evidence corroborating her testimony.9

C. Remand Is Appropriate for the Trial Court To 

Exercise Its Discretion Whether To Impose 

Consecutive or Concurrent Sentences

Lopez argues the trial court failed to recognize it had 

discretion to impose concurrent sentences on his two convictions. 

The court sentenced Lopez under the one strike law in section 

667.61, which “‘mandates an indeterminate sentence of 15 or 25 

years to life in prison when the jury has convicted the defendant 

of a specified felony sex crime [citation] and has also found 

certain factual allegations to be true.’” (People v. Carbajal (2013) 

56 Cal.4th 521, 534.) Section 667.61, subdivision (c), lists the 

crimes to which the one strike law generally applies. Continuous 

9 Lopez also asserts substantial evidence did not support his 

conviction because Rebecca testified the abuse started when she 

was six years old. The People alleged Lopez abused Rebecca until 

February 8, 2010, which was approximately three months two 

weeks after Rebecca’s sixth birthday. Therefore, according to 

Lopez, the jury could only speculate about whether the abuse 

occurred for at least three months. But a rational juror 

reasonably could infer that, when Rebecca testified she was six

years old when Lopez started abusing her, she meant she was 

approximately six years old, not necessarily that he only abused 

her after her sixth birthday. And even if Lopez only abused

Rebecca after her sixth birthday, there was still over three 

months for Lopez to abuse Rebecca. (See People v. Ennis (2010) 

190 Cal.App.4th 721, 729 [a reviewing court may reject testimony 

accepted by the trier of fact “‘only when it is inherently 

improbable or incredible, i.e., “‘unbelievable per se,’” physically 

impossible or “‘wholly unacceptable to reasonable minds’”’”].)
26

sexual abuse of a child in violation of section 288.5 is listed in 

section 667.61, subdivision (c)(9), as one of those crimes. The one 

strike law includes a provision requiring consecutive sentences 

for some, but not all, of the offenses listed in section 667.61, 

subdivision (c). That provision is section 667.61, subdivision (i), 

which states: “For any offense specified in paragraphs (1) to (7), 

inclusive, of subdivision (c), . . . the court shall impose a 

consecutive sentence for each offense that results in a conviction 

under this section if the crimes involve separate victims . . . as 

defined in subdivision (d) of Section 667.6.” Lopez contends that, 

because section 667.61, subdivision (c), states the court must 

impose consecutive sentences for offenses listed in 

subdivision (c)(1) to (7), and continuous sexual abuse of a child is 

specified in subdivision (c)(9), the trial court had discretion to 

impose concurrent sentences on his convictions.

Lopez’s interpretation of section 667.61 is correct. “‘The 

expression of some things in a statute necessarily means the 

exclusion of other things not expressed.’” (Le Francois v. Goel

(2005) 35 Cal.4th 1094, 1105; accord, People v. Gollardo (2017)

17 Cal.App.5th 547, 557.) Because section 667.61, subdivision (i), 

requires a trial court to impose consecutive sentences for certain 

offenses in section 667.61, subdivision (c)—namely, those listed in 

subdivision (c)(1) to (7)—it does not require the court to impose 

consecutive sentences for other offenses in the statute—namely, 

subdivision (c)(8) and (9). (See People v. Zaldana (2019) 

43 Cal.App.5th 527, 536 [because “section 288, subdivision (a) 

does not fall within [subdivision (c)(1)-(7)]—it is listed in section 

667.61, subdivision (c)(8)— . . . the court retains discretion to 

impose concurrent or consecutive 25-year-to-life terms for the 

three violations of section 288, subdivision (a)”], review granted 
27

Mar. 18, 2020, S259731.) Section 667.61, subdivision (i), “by 

implication leaves the decision to impose consecutive or 

concurrent terms” for the nonspecified offenses in section 667.61, 

subdivision (c), “to the sentencing court’s discretion under section 

669.” (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524; 

see People v. Bradford (1976) 17 Cal.3d 8, 20 [under section 669 

“a trial court has discretion to determine whether several 

sentences are to run concurrently or consecutively”]; People v. 

Woodworth (2016) 245 Cal.App.4th 1473, 1479-1480 [where a 

statute “does not contain an express provision depriving the trial 

court of the discretion afforded to it in section 669,” the trial court 

has “discretion to choose between concurrent and consecutive 

sentences”].) It’s hard to imagine a clearer expression of 

legislative intent that the consecutive sentencing provision of 

section 667.61, subdivision (i), does not apply to all nine offenses 

listed in section 667.61, subdivision (c), than stating it only 

applies to seven of them. (See People v. Cook (2015) 60 Cal.4th 

922, 935 [“statutory language is the best indicator of the 

Legislature’s intent”].)

The People ignore section 667.61, subdivision (i), entirely. 

Instead, they cite section 667.6, subdivision (d)(1), which 

provides: “A full, separate, and consecutive term shall be 

imposed for each violation of an offense specified in 

subdivision (e) if the crimes involve separate victims . . . .” 

Section 667.6, subdivision (e), includes continuous sexual abuse 

of a child in violation of section 288.5. (See § 667.6, subd. (e)(6).) 

Therefore, according to the People, section 667.6 requires the 

court to impose consecutive sentences on multiple convictions for 

continuous sexual abuse of a child (presumably, regardless of 

what section 667.61 says).
28

The People’s proposed interpretation of sections 667.6 and 

667.61, however, renders section 667.61, subdivision (i), 

superfluous. When interpreting a statute, “we do not consider 

the statutory language ‘in isolation.’ [Citation.] Rather, we look 

to ‘the entire substance of the statute . . . in order to determine 

the scope and purpose of the provision’” at issue, and we “must 

harmonize ‘the various parts of a statutory enactment . . . by 

considering the particular clause or section in the context of the 

statutory framework as a whole.’” (People v. Mendoza (2000) 

23 Cal.4th 896, 907-908; see People v. Hernandez (2021) 

60 Cal.App.5th 94, 105.) In so doing, “interpretations which 

render any part of a statute superfluous are to be avoided.” 

(Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 

1207; see People v. Cole (2006) 38 Cal.4th 964, 980-981 [“The 

rules of statutory construction direct us to avoid, if possible, 

interpretations that render a part of a statute surplusage.”]; 

People v. Aguilar (1997) 16 Cal.4th 1023, 1030 [courts “generally 

avoid a reading that renders any part of a statute superfluous”]; 

see, e.g., People v. Foley (2020) 56 Cal.App.5th 401, 410 [rejecting 

a proposed interpretation of section 667.61, subdivision (e)(4), 

because it “essentially eliminate[d]” a word from the statute and 

made it “entirely superfluous”].)

The legislative history confirms that section 667.61, 

subdivision (i), not section 667.6, subdivision (d), applies to 

sentencing under the one strike law. Prior to 2006, section 667.6, 

subdivision (d), required (as it does now) the court to impose 

consecutive sentences for certain sex crimes where the crimes 

involved separate victims or the same victim on separate 

occasions. (See former § 667.6, subd. (d), as amended by

Stats. 2002, ch. 787, § 16.) At that time the one strike law did not 
29

include a separate provision specifying when a trial court had to 

impose consecutive sentences. (See former § 667.61, as amended 

by Stats. 1998, ch. 936, § 9.) Thus, prior to 2006 it may have 

been unclear whether a trial court had to impose consecutive 

sentences when sentencing a defendant under the one strike law 

for offenses listed in section 667.6. 

But in 2006 the Legislature enacted the Sex Offender 

Punishment, Control, and Containment Act, which among other 

changes added subdivision (i) to section 667.61. (See Stats. 2006, 

ch. 337, § 33.)10 Section 667.61, subdivision (i), specified when a 

trial court had to impose consecutive sentences under the one 

strike law; it was (and still is) less inclusive than section 667.6, 

subdivision (d)(1). As amended, section 667.6, subdivision (d)(1), 

already required the court to impose consecutive sentences for 

each of the crimes specified in section 667.61, subdivision (i). 

(Compare former § 667.61, subds. (c)(1)-(7), (n)(1)-(6), as amended 

by Stats. 2006, ch. 337, § 33 with former § 667.6, subd. (e)(1)-(8), 

as amended by Stats. 2006, ch. 337, § 32.) Therefore, if the 

Legislature intended section 667.6, subdivision (d), to apply (or 

continue to apply) where the trial court sentenced a defendant 

under the one strike law, there would have been no need to add 

subdivision (i) to section 667.61. The Legislature could have 

decided not to add a sentencing provision when it amended 

section 667.61 in 2006, which would have left trial courts to apply 

section 667.6, subdivision (d)(1), when sentencing a defendant 

under the one strike law. But that’s not what the Legislature 

10 The legislation also added continuous sexual abuse of a 

child to section 667.6, subdivision (e), thereby making the 

enhancements specified in section 667.6 applicable to that crime.
30

did. Instead, the Legislature added to the one strike law an 

independent sentencing provision that directs the trial court to 

impose consecutive sentences for some, but not all, of the crimes 

subject to the one strike law.11 

The history of Senate Bill No. 1128, the bill that became 

the Sex Offender Punishment, Control, and Containment Act of 

2006, also indicates section 667.61, subdivision (i), governs trial 

court discretion to impose consecutive or concurrent sentences 

under the one strike law. As amended on March 2, 2006, the bill 

added continuous sexual abuse of a child in violation of section 

288.5 to the crimes specified in section 667.6, subdivision (e), and 

section 667.61, subdivision (d). Continuous sexual abuse of a 

child was initially listed in section 667.61, subdivision (c)(10), 

rather than in section 667.61, subdivision (c)(9). And section 

667.61 initially did not include the provision later enacted as 

subdivision (i), listing the offenses for which the trial court had to 

11 Had the Legislature intended section 667.6, 

subdivision (d)(1), to apply whenever the trial court sentenced a 

defendant under the one strike law, the Legislature could have 

drafted section 667.61, subdivision (i), to read something like: 

“The court shall impose a consecutive sentence for each offense 

that results in a conviction under this section if required by 

section 667.6, subdivision (d).” (See Vasquez v. State of 

California (2008) 45 Cal.4th 243, 253 [“We may not rewrite the

statute to conform to an assumed intention that does not appear 

in its language.”]; People v. Wilson (2020) 53 Cal.App.5th 42, 52 

[same].)
31

impose consecutive sentences. (See Sen. Amend. to Sen. Bill 

No. 1128 (2005-2006 Reg. Sess.) §§ 30-31, Mar. 2, 2006.) 12 

But on May 26, 2006 the sponsor of the legislation 

introduced an amended version of the bill that added a new 

subdivision (i) to section 667.61 that, as discussed, specified when 

the trial court had to impose consecutive sentences under the one 

strike law. (See Sen. Amend. to Sen. Bill No. 1128 (2005-2006 

Reg. Sess.) §§ 32-33, May 26, 2006.) The addition of new 

subdivision (i) to section 667.61 indicates the Legislature 

understood the one strike law was an “‘alternative and harsher 

sentencing scheme for certain enumerated sex crimes’” (People v. 

Acosta (2002) 29 Cal.4th 105, 118; see People v. Mancebo (2002) 

27 Cal.4th 735, 741), to which other sentencing rules and 

enhancements, such those in section 667.6, generally did not 

apply. Thus, the Legislature had to add subdivision (i) to section 

667.61 to prescribe when trial courts had to impose consecutive 

sentences under the one strike law. (See Assem. Com. on Public 

Safety, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.), as 

amended June 22, 2006, ¶ 84 [the bill “[s]pecifies that for certain

crimes listed in the One-Strike sex statute, an offender must be 

12 The March 2, 2006 version of the bill would have added 

lewd or lascivious act in violation of section 288, subdivision (a),

as section 667.61, subdivision (c)(9), and continuous sexual abuse 

of a child in violation of section 288.5 as section 667.61, 

subdivision (c)(10). (See Sen. Amend. to Sen. Bill No. 1128 

(2005-2006 Reg. Sess.) § 31, Mar. 2, 2006.) The final version of 

the bill renumbered the paragraphs of the subdivision so that 

continuous sexual abuse of a child in violation of section 288.5 

was listed as section 667.61, subdivision (c)(9). (See Stats. 2006, 

ch. 337, § 33.)
32

sentenced consecutively if the crime involves separate victims or 

the same victim on separate occasions”].) 

Because the trial court may not have recognized it had 

discretion to impose concurrent or consecutive sentences on 

Lopez’s convictions for continuous sexual abuse of a child, 

remand is appropriate to allow the trial court to exercise that 

discretion.13 On remand, the court must state its reasons for 

imposing either concurrent or consecutive sentences. (See Cal. 

Rules of Court, rule 4.406(b)(5).)

13 The trial court did not state why it was imposing 

consecutive sentences. Although we ordinarily presume the trial 

court understood its sentencing discretion where the record is 

silent (People v. Lee (2017) 16 Cal.App.5th 861, 867), we decline 

to do so here because the application of section 667.6,

subdivision (d)(1), to the one strike law was arguably unsettled, 

the court gave no indication it believed it had discretion to impose 

concurrent sentences, and the court did not state its reasons for 

imposing consecutive sentences.
33

DISPOSITION

The convictions on both counts of continuous sexual abuse 

of a child are affirmed. The sentences on those convictions are 

vacated, and the trial court is directed to exercise its discretion 

whether to impose consecutive or concurrent sentences on those

convictions.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.