Filed 10/30/13 P. v. Raines CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER MICHAEL RAINES, Defendant and Appellant. D062264

(Super. Ct. No. SCD230332)

APPEAL from a judgment of the Superi or Court of San Diego County, Peter C. Deddeh, Judge. Remanded with instructions to amend abstract of judgment; affirmed in all other respects.

Nancy L. Tetreault, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lise S. Jacobson and Andrew Mestman, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 A jury found Christopher Michael Raines guilty of (1) committing a lewd act upon a child (Pen. Code, § 288, subd. (a)), 1 with the further finding that he personally inflicted bodily harm (§ 288, subd. (i )(1)); and (2) felony child abus e (§ 273a, subd. (a)), with the further finding that he persona lly inflicted great bodily injury on a child under the age of five (§ 12022.7, subd. (d)). The jury also made true find ings on allegations under the
"One Strike" law 2 that, as to the lewd act count, Raines personall y inflicted bodily harm on a victim under 14 years of age and personally inflicted gr eat bodily inju ry (§ 667.61, subds. (a), (c), (d)). The trial court sentenced Raines to prison for an indeterminate term of 25 years to life. Raines contends the trial court erred by (1) admitting into ev idence statements made in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ); (2) admitting into evidence tes timony describing prior acts of sexual abuse; (3) imposing and then staying additional prison terms for the lewd act count (count 1); and (4) imposing a $60 fee that it referred to as an "ICNA" fee at sentencing. We conclude that the trial court erred by imposing and staying additional prison terms for count 1, but that Raines's remaining arguments lack merit. We accordingly remand for the trial court to correct the abstra ct of judgment to remove reference to the

1 Unless otherwise indicated, all further st atutory references are to the Penal Code. 2 "Section 667.61 . . . is sometimes called the 'One Strike' law." ( People v. Anderson (2009) 47 Cal.4th 92, 99.)3 additional imposed and stayed prison terms for count 1, a nd we otherwise affirm the judgment. I FACTUAL AND PROCEDUR AL BACKGROUND Raines was caring for a 22-month-old gi rl (the Child) on October 17, while her mother (the Mother) was at wo rk. While with Raines, the Ch ild suffered a serious injury to her genital area caused by blunt force trauma consistent with the fo rcible insertion of a penis or other object into the Child's vagina . The injury consisted of a jagged rip of approximately 1.5 centimeters in the Child's perineum, betw een her vagina and anus. There were also serious injuries to the Child's internal vagi nal structures, and the Child's hymen was broken and to rn away. The injury caused a large amount of bleeding that soaked the Child's diapers. A pediatrician who specializes in chil d abuse later examined the Child and determined that th e injury did not appear to be the result of an accident, and the insertion of fingers into the Child's vagi na would not have caus ed such an extensive injury. Deciding that the injury required medical attention, Raines drove to meet the Mother at her workplace to pi ck up the Child's me dical insurance card before driving to the hospital. On the way to the hospital, Rain es told the Mother th at the injury occurred while he and the Child were in the shower and the Child sli pped out of his arms. After examining the Child, an emergency room doc tor suspected sexual abuse and notified the police.4 Police officers spoke to Raines at the hos pital. Raines initia lly told them that while he was taking a shower w ith the Child, she slipped out of his arms and he grabbed her while she was falling, which may have ca used her injuries. When a police officer told Raines that, according to the doctor, the Child's injuries were not consistent with a slip in the shower, Raines put his head down and said, "M y life is over." After being silent with his head down for several minutes, Raines stated that the Child did not slip in the shower. Raines explained that, instead, the Child was injured wh en he was changing her diaper on the bed. According to Raines , the Child was falling off the bed when he grabbed her to stop her fall, possibly causing his finger to penetrate her "butt." The Child was transferred to Children's Hospital, wher e she underwent surgery to repair her injuries. While Raines was at Children's Hospita l with the Child, he was interviewed by police detectives in a private room. The interview, which was recorded, commenced shortly before midnight on October 17 and did not end until 1:47 a.m. on October 18. Near the beginning of the intervie w, Raines was informed of his Miranda rights and agreed to speak to the detec tives. Raines repeated the cl aim that the Child was injured when he was changing her diapers and he gra bbed her as she fell off the bed. He stated that he originally claimed th e injury happened in the shower because he was "in panic mode" when he first got to the hospital. He denied touching the Child with his penis. Early in the morning on October 18, Ra ines was taken to the police department where a nurse performed a sexual assault exam ination on Raines, including taking swabs from Raines's penis and scrotum. A subse quent DNA analysis of a bloody swab from5 Raines's penis showed the Child as a possible contributo r of some of the DNA on the swab. Around 8:00 a.m. on October 18, a po lice interviewer and a police detective questioned Raines at the police station in a recorded intervie w (the third police interview). During the third police interview, Raines initially maintained his prior claim that he must have accidentally injured th e Child when she fell from the bed during a diaper change. However, near the end of the interview, Raines stated that he intentionally inserted two fing ers into the Child's vagina to restrain the Child when he lost his temper due to the di fficulty of changing the Child's diaper while she was moving around. At the conclusion of the interview, the police detective arrested Raines. A search of the home where Raines wa s caring for the Child revealed — among other things — a blood stain on the mattress where the Child's diaper was changed, a bloody sheet from that bed that Raines admitted putting in the outside trash can before going to the hospital with the Child, and blo od stains on the floor of the bedroom. Raines was charged with one count of committing a lewd ac t upon a child under the age of 14 (§ 288, subd. (a)), with the further allegati on for sentencing purposes under section 288, subdivision (i)(1) that he pers onally inflicted bodily harm, and further allegations for sentencing purpos es under the One Strike law that he personally inflicted bodily harm on a victim under 14 years of ag e and personally inflicted great bodily injury (§ 667.61, subds. (a), (c), (d)(6) & (7)). Ra ines was also charged with one count of felony child abuse (§ 273a, subd. (a)).6 At trial, two of Raines's female relativ es (Girl No. 1 and Girl No. 2), who were both 17 years old at the time of trial, testified that they were sexually molested by Raines when they were approximately three and four years old and Raines was an adult. Girl No. 1 testified that when she wa s approximately three years old, Raines walked into the room, exposed his penis to her, and asked whether she wanted to touch it and whether he could touch he r. She poked at Raines's pe nis and then ran out of the room after he tried to touch her crotch. According to Girl No. 1, she disclosed the incident to her parents shortly after it occurred. Girl No. 1's mother testified at trial that she learned of the incident shortly after it happened but decided not to take any action against Raines after she spoke with him and he contende d it was a misunderstanding. Girl No. 2 testified that when she was approximately four years old Raines came into her bedroom and asked her if she would touch his body pa rts and have sex with him. She did not understand the que stion and said "Yes." Rain es pulled down his pants and got on top of her. It hurt her and she said "Ow," after which Raines stopped and left the room. Girl No. 2 remembered bleeding from he r vagina onto her legs. According to the testimony of Girl No. 2 and of her mother, Gi rl No. 2 disclosed the molestation to her mother when she was approximately 13 years ol d, at which time her mother did not take any action against Raines. The jury found Raines guilty on both counts and furthe r found the bodily injury allegations to be true. The trial court sentence d Raines to prison for a term of 25 years to life.7 II DISCUSSION A. Admission into Evidence of Raines's Statemen ts Made During the Third Police Interview Raines contends that the statements he made during the third police interview — which took place at approxim ately 8:00 a.m. on October 18 — should not have been admitted at trial because he was not advised of his Miranda rights prior to that interview. 1. Applicable Law The general rule excluding stat ements obtained in violation of Miranda is well established. " Miranda . . . , supra , 384 U.S. 436, and its pr ogeny protect the privilege against self-incrimination by precluding su spects from being subjected to custodial interrogation unless and until they have knowingl y and voluntarily waived their rights to remain silent, to have an atto rney present, and, if indigent , to have counsel appointed." ( People v. Gamache (2010) 48 Cal.4th 347, 384.) St atements obtained in violation of Miranda are generally inadmissibl e to establish guilt. ( People v. Sims (1993) 5 Cal.4th 405, 440.) 2. Because He Made No Objection at Trial, Raines Has Forfeited His Appellate Argument That His Statemen ts During the Third Police Interview Should Not Have Been Admitted into Evidence An evidentiary objection at trial is a prerequisite to obtaining reversal of a judgment based on the erroneous admission of evidence. As our Supreme Court has explained, " 'Evidence Code section 353, subdivision (a ) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a8 motion to strike it was "timely made and so stat ed as to make clear th e specific ground of the objection." Pursuant to this statute, " 'we have consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.' " ' " ( People v. Rundle (2008) 43 Cal.4th 76, 116.) " Miranda

based claims are governed by this rule. 'The general rule is that a defendant must make a specific objection on Miranda grounds at the trial le vel in order to raise a Miranda claim on appeal.' " ( People v. Mattson (1990) 50 Cal.3d 826, 854.) 3 Here, Raines made no objection at trial to the admission of his statements during the third police interview. Accordingly, Ra ines may not pursue an appeal based on the contention that the statements he made during the third poli ce interview were erroneously admitted into evidence in violation of Miranda

. 3. Raines Has Not Established In effective Assistance of Counsel Raines argues that if the Miranda issue has not been preserved for appeal due to defense counsel's failure to object in the tr ial court, the judgment should be reversed because he received ineffectiv e assistance of counsel. "Under both the Sixt h Amendment to the United St ates Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the

3 Although Raines contends that we have the discretion to consider an argument made for the first time on appeal , that principle does not appl y here because the asserted ground for reversal is the pu rportedly erroneous admission of evidence to which there was no objection at trial. ( People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is barred from reaching a questi on that has not been preserved for review by a party "when the issue involves the admi ssion (Evid. Code, § 353) or exclusion ( id. , § 354) of evidence"].)9 assistance of counsel." ( People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant claiming ineffective assistan ce of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient perform ance resulted in prejudice. ( Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma , at pp. 216, 218.) Prejudice is shown when "there is a reas onable probability that , but for counsel's unprofessional errors, the result of the pr oceeding would have been different. A reasonable probability is a probability suffi cient to undermine confidence in the outcome." ( Strickland , at p. 694.) Further, as important here , "[r]eviewing courts reve rse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational ta ctical purpose for counsel's omissions." ( People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569.) "In the usual case, where co unsel's trial tactics or strategic reasons for challenged decisions do not appear on the reco rd, we will not find in effective assistance of counsel on appeal unless th ere could be no conceivable reason for counsel's acts or omissions." ( People v. Weaver (2001) 26 Cal.4th 876, 926 ( Weaver ).) Moreover, "[t]he decision whether to object to the admission of evidence is 'inheren tly tactical,' and a failure to object will rarely reflect deficient performance by counsel." ( People v. Castaneda (2011) 51 Cal.4t h 1292, 1335.) Here, because there could have been a tactical reason for defense counsel's failure to object to the admission of Raines's statements made dur ing the third police interview,10 the record on direct appeal is insufficient to establish that defense counsel provided ineffective assistance. One pl ausible reason for defense counse l's failure to object to the admission of the statements Raines made duri ng the third police interview could be that defense counsel believed it would be useful to have the jury hear the explanation for the Child's injuries offered by Raines in that interview. Indeed , in the third police interview Raines provided a more plausible non-sexu al explanation for th e injuries than his previous claims that the Child was injured while falling off the bed or in the shower. During closing argument, defense counsel focu sed on Raines's statements made during the third police interview, arguing that Raines 's explanation for the Child's injuries was reasonable, and based on that explanation, although Raines may have committed child abuse as charged under count 2, he did not ha ve the sexual intent necessary to support a finding of guilt on the lewd act count. 4 Because we cannot say that there was "no conceivable reason for counse l's acts or omissions," Ra ines has not established ineffective assistance of counsel. ( Weaver , supra , 26 Cal.4th at p. 926.)

4 During closing argument, defense counsel argued that Raines's version of events as stated in the third police interview wa s a reasonable explanation for the Child's injuries. "There's nothing unreasonable about what Mr. Raines said happened here. . . . His version of events, while th ey came at the end, . . . it 's not unreasonable." Defense counsel stated, "Another reasonable explanati on for that [injury] is exactly what you heard Mr. Raines say after he was broken dow n by all the officers. Of fingers going in and fingers pushing down. And the law tells you that you have to accept the one that points to innocence." As defense counsel explai ned to the jury, "That's what count 2 is. That Mr. Raines, for whatever terrible reasons that we're not here to figure out, abused [the Child] and hurt her physic ally. But they can't prove it to you that it was done sexually."11 In addition, the factual record is unde veloped regarding the circumstances of the third police interview. Witnesses at trial were not questioned about whether Raines was reminded of his Miranda rights prior to the beginning of the recorded portion of the third police interview. Further, counsel's questio ning did not explore th e issue of whether Raines was in police custody during the thir d police interview, and thus it is unclear whether the interview qualified as a custodial interrogation under Miranda . (See People v. Linton (2013) 56 Cal.4th 1146, 1167 [" 'An interrogation is custodial, for purposes of requiring advisements under Miranda , when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" ' " with "the pertinent question being whether the person was formal ly arrested or subject to a restraint on freedom of movement of the degree associated with a formal arrest"].) Therefore, it is possible that defense counsel had information about the circ umstances of the third police interview that are not apparent from the u ndeveloped factual record — such as that Raines was reminded of his Miranda rights or was not in police custody — which reasonably could explain counsel's failure to argue for the exclusion of Raines's statements. " ' "[If] the record on appe al sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfact ory explanation," the claim on appeal must be rejected .' [Citations.] A claim of in effective assistance in such a case is more appropriately decided in a habeas corpus proceeding." ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In this case, because the factual record concerning the circumstances of the third po lice interview is not adequately developed,12 this direct appeal is not the appropriate foru m for evaluating Raines's claim of ineffective assistance of counsel. B. Raines's Challenge to the Admission of the Testimony Concerning the Molestation of Girl No. 1 and Girl No. 2 Is Without Merit We next consider Raines's argument that the trial court erred in admitting evidence of the molestation of Girl No. 1 and Girl No. 2. 1. Raines's Challenge to the Constitutionality of Evidence Code Section 1108 We first consider Raines's constitutio nal challenge to the evidentiary provision under which the trial court adm itted evidence of Raines's se xual abuse of Girl No. 1 and Girl No. 2. The evidence was admitted under Eviden ce Code section 1108, subdivision (a), which states: "In a criminal ac tion in which the defendant is accused of a sexual offense, evidence of the defendant's commission of anothe r sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section
352." 5

5 Evidence Code section 1101 addresse s the exclusion of evidence of a person's character or a trait of his or her characte r to prove his or her conduct on a specified occasion.13 Raines contends that the trial court improperly relied on Evidence Code section 1108 for the admission of evidence in this action beca use section 1108 violates constitutional principles of due process and equal protection. 6 We reject the due process argument becau se our Supreme Court has decided that Evidence Code section 1108 do es not violate a defendant's constitutional right to due process ( People v. Falsetta (1999) 21 Cal.4th 903, 916 ( Falsetta )), and we are required to follow that decision. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We also reject the argument that Eviden ce Code section 1108 violates Raines's constitutional right to equal protection. A lthough our Supreme Court has not expressly ruled on the equal protection argument, a well-reasoned intermediate appellate court opinion has rejected it ( People v. Fitch (1997) 55 Cal.App.4th 172, 182-184), and our Supreme Court has cited that decision with approval. As our Supreme Court has explained, " Fitch . . . rejected the defendant's equal protection challenge, concluding that the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are la rgely credibility contests." ( Falsetta , supra , 21 Cal.4th at p. 918; see also People v. Jennings (2000) 81 Cal.App.4th 13 01, 1312 [observing that "the Supreme Court in Falsetta appeared to indicate its agreement with the Fitch court's

6 As Raines recognizes, prior courts have rejected constitutional challenges to Evidence Code section 1 108, but he raises the argument primarily to preserve it for a later federal post-conviction review.14 equal protection holding"].) We follow Fitch in concluding that Evidence Code section 1108 does not infringe upon Raines's constit utional right to equal protection. (See People v. Waples (2000) 79 Cal.A pp.4th 1389, 1395 ( Waples ) [rejecting equal protection attack on Evid. Code, § 1108 "[f]or th e reasons best expressed in Fitch , which were endorsed in Falsetta "].) 2. The Trial Court Did Not Abuse Its Disc retion in Declining to Exclude the Evidence of Other Sexual Offenses Under Evidence Code Section 352 Raines next contends that, pursuant to Ev idence Code section 352, the trial court should have granted his motion in limine to exclude evidence of his sexual molestation of Girl No. 1 and Girl No. 2. Evidence Code section 352 allows the tria l court, in its discretion, to "exclude evidence if its probative value is substantia lly outweighed by the probability that its admission will (a) necessitate undue consumptio n of time or (b) create substantial danger of undue prejudice, of confusing the i ssues, or of misleading the jury." ( Ibid .) "We apply the deferential abuse of disc retion standard when reviewing a trial court's ruling under Eviden ce Code section 352." ( People v. Kipp (2001) 26 Cal.4th 1100, 1121.) "We will not find that a court abuses its discretion in admitting . . . other sexual acts evidence unless its ruling ' "falls outside the bounds of reason[,]" ' " and "the court has exercised its discretion in a manne r that has resulted in a miscarriage of justice." ( People v. Miramontes (2010) 189 Cal.App.4th at 1085, 1098 ( Miramontes ).) "The weighing process under Evidence Co de section 352 'depends upon the trial court's consideration of the unique facts and is sues of each case, ra ther than upon the15 mechanical application of automatic rules.' " ( Miramontes , supra , 189 Cal.App.4th at p. 1097.) When considering wh ether to exclude evidence of another sexual offense under Evidence Code section 352, "trial judges mu st consider such factors as its nature, relevance, and possible remoteness, the degr ee of certainty of its commission and the likelihood of confusing, mislead ing, 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 uncha rged offense, and th e 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 t hough inflammatory details surrounding the offense." ( Falsetta , supra , 21 Cal.4th at p. 917.) "[T]he probative value of 'other crimes' evidence is increased by the relative simila rity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victim s) in each offense," and "the prejudicial impact of the evidence is reduced if th e uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to co nvict the defendant simply to punish him for the other offenses, and that th e jury's attention woul d not be diverted by having to make a separate determinati on whether defendant committed the other offenses." ( Ibid. , italics deleted.) Further, in evalua ting whether to admit evidence of other sexual offenses, the court should consider " 'whether "[t]he testimony describing defendant's uncharged acts . . . was no stro nger and no more infl ammatory than the testimony concerning the charged offenses." ' " ( Miramontes , supra , 189 Cal.App.4th at p. 1097.) " ' "The 'prejudice' referred to in Eviden ce Code section 352 applies to evidence16 which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " ' " ( Id. at p. 1098.) As an initial matter, we observe that the evidence of Raines's molestation of Girl No. 1 and Girl No. 2 was highly probative on a central factua l dispute in this case, which was whether Raines injured the Child with his fingers after losing his temper or injured her when he had sexual intercourse with her. "[U]ncharged prior offenses that are very similar in nature to the charged crime logica lly will have more prob ative value in proving propensity to commit th e charged offense." ( People v. Hernandez (2011) 200 Cal.App.4th 953, 966; see also Falsetta , supra , 21 Cal.4th at p. 917 ["the relative similarity between the charge d and uncharged offenses" increases the probative value].) Here, the incidents involving Girl No. 1 and Girl No. 2 we re both very similar to the incident involving the Child in that they both in volved intentional sexual conduct with very young girls in which Raines used his pe nis and either touched or attempted to touch the girls' genitals. There were even further similarities between this case and the incident involving Girl No. 2 in that Raines had sexual intercourse with Girl No. 2 and injured her in the same way that the Child was injured, causing bleeding from her vagina. Therefore, the earlier incidents were highly probative of wh ether Raines acted in conformity with his17 prior conduct by engaging in intentional sexual acts with young girls rather than injuring the Child through non-sexual contact as he claimed. 7 Despite the highly probativ e nature of the evidence, Raines contends that it should have been excluded because it was unreliabl e due to certain inconsistencies in the descriptions given by the girls over time as they spoke to different people about the abuse. Raines contends that "[t]he trial te stimony of [the mother], [Girl No. 1], and [Girl No. 2] . . . differed significantly on important facts. It also differed from what they told [an investigating police officer in this case] during her forensic interviews. This showed the testimony to be unreliable, and re ndered the differing stories confusing." 8 As we have noted, one factor a trial cour t may consider in determining whether to exclude evidence of a prior se xual offense under Evidence Code section 352 is "the degree of certainty of its commission." ( Falsetta , supra , 21 Cal.4th at p. 917.) In the circumstances of this case, we do not believe that the in consistencies and vagueness in the girls' testimony renders the testimony so unr eliable that it should have been excluded.

7 Raines also specifically challenges th e trial court's admission of the testimony of the girls' mother, claiming that "[a]t the leas t [the mother's] testim ony should have been excluded under [Evidence Code] section 352 because it added nothing to the testimony of [Girl No. 1 and Girl No. 2]." We disagree. The mother's testimony was relevant because she was an adult at the time th e incidents occurred, she was able to corroborate the girls' sometimes vague memories from when they were much younger, and her testimony that the girls disclosed the molestation to her severa l years ago bolstered the girls' credibility. 8 Raines is referring to inconsistencies in some of the details that the girls gave at different times, such as in statem ents to their mother, to the police investigator or at trial. The differences concerned deta ils such as whether the mole station occurred on a bed or on the floor, whether the girl was holding a doll when Raines entered her room and whether the girl was asleep during the molestation.18 As Raines acknowledges, "the inconsistent and confusi[ng] evidence in this case was likely due to the victims' young ages when th e abuse occurred." Raines targeted very young girls for sexual molestation, which meant that the victims would likely have relatively vague memories as a result of thei r young age at the time of the abuse. The trial court reasonably could conclude that th e girls' young ages at the time they were victimized provides a reasonable explanation for any inconsistencies. The trial court could also reasonably conclude that it would be unjust to allo w Raines to benefit from the fact that his victims were too young to have precise memories of the abuse. Given the highly probative nature of the girls' test imony, the trial court was well within its discretion to decide that any prejudice due to its unreliability was outweighed by the probative value of the evidence. 9 Raines also argues that the incidents invol ving Girl No. 1 and Girl No. 2 were too remote in time to be probative. "No spec ific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible[,]" and "substantial similarities be tween the prior and the char ged offenses" may serve to "balance out the remoteness of the prior offenses." ( People v. Branch (2001) 91

9 We note also that the ev idence of Raines's sexual ab use of Girl No. 1 and Girl No. 2 was no more inflammatory th an the facts of the instant o ffense, as Raines's physical contact with Girl No. 1 and Girl No. 2 was no more intrusive than his contact with the Child, and the injuries to Girl No. 1 and Girl No. 2, if any, were less serious than the injury to the Child. Th erefore, the trial cour t's consideration of " 'whether "[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony c oncerning the charged offenses" ' " ( Miramontes , supra , 189 Cal.App.4th at p. 1097) would reasonabl y have weighed in fa vor of admitting the evidence.19 Cal.App.4th 274, 284-285.) As described at trial, the incidents occurred approximately 12 years before the Child was injured. Courts have held that a time gap of even longer than 12 years is not too remo te in time when th e evidence is otherwise probative. (See Waples , supra , 79 Cal.App.4th at p. 1395 [20 years]; People v. Frazier (2001) 89 Cal.App.4th 30, 41 [15 or 16 ye ars].) The trial court reasonably could decide that due to the close factual similarities between the pr ior incidents and the current offense, the evidence of the earlier incident s was not unduly prejudicial merely because they occurred 12 years before. In sum, we conclude that the trial cour t did not abuse its discretion under Evidence Code section 352 by allowing the introductio n of evidence that Raines molested Girl No. 1 and Girl No. 2. B. Raines's Challenge to His Sentence 1. Raines's Challenge to Trial Co urt's Imposition and St aying of Additional Prison Terms for Count 1 The trial court sentenced Raines to a term of 25 years to life on count 1. Specifically, Raines was sentenced pursua nt to section 667.61, subdivision (a) — commonly known as the "One Strike law" — which provides for a sentence of 25 years to life when a defendant is convicted of an enumerated sexual offense (including, as relevant here, violation of § 288, subd. (a)) and the People plead and prove one or more specified aggravating circumstances (§ 667.61, subd. (b)). Here, the jury made a true finding on two such aggravating circumstances, namely that Raines personally inflicted20 bodily harm on a victim under 14 years of ag e and that he personally inflicted great bodily injury. (§ 667.61, subd. (d)(6) & (7).) Although Raines does not dis pute that a sentence of 25 ye ars to life is the correct sentence for him to be serving under the One Strike law, he takes issue with the trial court's process for arriving at that senten ce, in which it imposed and stayed additional prison terms for count 1. Raines asks us to remand this case so that the trial court can correct its error and issue an am ended abstract of judgment. As an initial matter, we describe the tria l court's approach to sentencing Raines for his conviction in count 1 for committing a le wd act upon a child (§ 288, subds. (a), (i)(1)). First, during the sentencing hearing, befo re addressing the One Strike law, the trial court explained that it was imposing a sentence of life with the possi bility of parole for Raines's conviction on count 1 pursuant to section 288, subd ivision (i)(1), which provides for that sentence when the defendant has pers onally inflicted bodily harm in committing a lewd act against a child. 10 The trial court then stayed the sentence of life with the possibility of parole pursua nt to section 654. Next, turning to the sentence indicated in the One Strike law, the trial court imposed two terms of 25 years to life, co rresponding to each of the two aggravating

10 Section 288, subdivision (i)(1) provides for a sentence of life with the possibility of parole if a defendant gu ilty of committing a lewd action against a child under section 288, subdivision (a) has been found to have personally inflicted bodily harm upon the victim.21 circumstances that the jury found to be true (§ 667.61, subd. (d)(6) & (7)). It stayed the first of those 25-year-to-lif e terms and ordered Raines to serve the second term. 11 In accordance with the trial cour t's pronouncement at sentencing, the abstract of judgment states (1) the sentence imposed pursuant to section 288, su bdivisions (a) and (i)(1) is stayed; (2) one of the 25-year-to-life terms im posed under the One Strike law is stayed; and (3) the term to be served is the othe r 25-year-to-life term imposed under the One Strike law. The abstract of judgment al so lists the sentences imposed under the One Strike Law as "Enhancement." Raines contends that according to the ap proach required by statute, (1) the trial court should not have im posed and stayed the life with th e possibility of parole sentence imposed under section 288, subdivision (i)(1); and (2) the trial court should not have imposed and stayed the second 25-year-to-lif e sentence imposed under the One Strike law. Instead, according to Raines, his senten ce for count 1 should simply reflect a single 25-year-to-life sentence imposed pursuant to the One Strike law. Raines also takes issue with the abstract of judgment's description of the sentence imposed under the One Strike law as an "Enhancement." The Attorney General agrees that the trial court's approach was incorrect and that the judgment should be amende d to reflect a single 25-year-to-life term for count 1. As we will explain, we agree with the parties.

11 The trial court also stay ed the 11-year sentence impos ed for count 2 under section 654.22 We begin with the principle that the On e Strike law is an alternative sentencing scheme, not an enhancement. "[T]he One Stri ke law does not establish an enhancement, but 'sets forth an alternative and harsher se ntencing scheme for certain enumerated sex crimes' when a defendant commits one of thos e crimes under specified circumstances." ( People v. Acosta (2002) 29 Cal.4th 105, 118.) Under the One Strike law, the trial court is required to impose the sentence specified under that sentencing scheme "unless another provision of law provides for a greate r penalty." (§ 667.61, subd. (f).) Because the One Strike law is an alternative sentencing scheme under which the harsher penalty is to be imposed instead of the penalty specified by other provisions of law, the trial court improperly sent enced Raines under both section 288, subdivision (i)(1) and the One Strike law. As the One Strike law provides for the greater penalty of 25 years to life (§ 667.61, subd. (a)), the trial court shoul d have imposed only that sentence. There was no legal basis for the trial court to impos e and then stay the sentence specified in secti on 288, subdivision (i)(1). 12 Next, the One Strike law does not prov ide for the imposition of two sentences of 25 years to life for the same count when the jury makes a true finding as to two aggravating circumstances. Section 667.61, su bdivision (f) states that "if any additional circumstance or circumstances specified in subdivision (d) or (e) [i.e., aggravating circumstances] have been pled and proved, the minimum number of circumstances shall

12 As the penalty required by the One Strike law is not an enhancement, the trial court further erred by listing the sentence unde r the One Strike law as an "Enhancement" on the abstract of judgment.23 be used as the basis for imposing the term provided in subdivision (a ) . . . and any other additional circumstance or circumstances sh all be used to impos e any punishment or enhancement authorized under any other provision of law." (§ 667.61, subd. (f), italics added.) Because the additional circumstance s are used to impose punishment under any other provision of law, the statute does not aut horize the use of additional circumstances to impose a second 25-year-to-life term for th e same count under the One Strike law. Both parties agree that the reasonable approa ch under the One Strike law when the jury has made a true finding on add itional circumstances that ar e not needed to meet the requirement for the imposition of a 25-year-t o-life term pursuant to section 667.61, subdivision (a) is for the true finding on the additional circ umstance to simply remain on the record as an additional unimposed sp ecial allegation found true by the jury. We will remand this matter to the trial c ourt with directions that it correct the abstract of judgment with respect to count 1 to reflect a single 25-year-to-life term imposed under the One Strike law, and the true finding on the additional circumstance shall remain on the record as an additional unimposed specia l allegation found true by the jury. 2. Raines's Challenge to the "ICNA Fee" During sentencing, the trial court stated that it was imposing a "$60 ICNA fee." The abstract of judgment refers to a $6 0 "Criminal Conviction Assessment . . . per [Government Code section] 70373." Raines contends that the $60 fee was not properly imposed because the trial court referred to it as an "ICNA fee" at sentenci ng instead of referenc ing Government Code24 section 70373. Raines does not contend that the $60 fee required by Government Code section 70373 was unauthorized in this case. He merely ta kes issue with the trial court's description of the fee at the sentencing hearing. We reject Raines's argument. Governme nt Code section 70371.5 establishes the "Immediate and Critical Needs Account" (ICNA) of the State Court Facilities Construction Fund. The ICNA is funded by a criminal conviction assessment fee, as mandated in Government Code section 70373. (Gov. Code, § 70373, subds. (a)(1), (d).) The criminal conviction assessment fee is im posed for every criminal conviction "in the amount of thirty dollars ($30) for each misdem eanor or felony" to "ensure and maintain adequate funding for court facilities." (G ov. Code, § 70373, subd. (a)(1).) These assessments are then transferred for depos it into the ICNA. (Gov. Code, § 70373, subd. (d).) With this statutory background in mind, it is clear to us — and should have been clear to experienced trial counsel — that the trial court's reference to an "ICNA fee" was a short-hand way of referring to the fee au thorized and required by Government Code section 70373. There is no indication in the record th at anyone present during the sentencing hearing was unclear about the fee that the trial court referred to as the "ICNA fee." However, if defense counsel was unclear about what the trial court was referring to as the "ICNA fee," it was his burden to ask for clarif ication during the sentencing hearing. He did not, and thus Raines may not complain on appeal about the trial court's description of the fee. ( People v. Scott (1994) 9 Cal.4th 331, 353 [if counsel does not ask for25 clarification and correction as to the trial court's statement of reasons for sentencing choices, the issue is waived on appeal as long as sentence is not unauthorized].) As the $60 fee was authorized by Gove rnment Code section 70373 and defense counsel did not object to the trial court's de scription of the fee at sentencing, Raines's contention that the trial cour t erred is without merit. DISPOSITION We remand this matter to the trial court with directions that it correct the abstract of judgment with respect to count 1 to re flect a single 25-year-to-life sentence imposed under 667.61, subdivisions (a), (c) and (d), and that it forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

IRION, J. WE CONCUR:

BENKE, Acting P. J.

AARON, J.