Filed 9/16/13 P. v. Palomo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ROBERT PALOMO,

 Defendant and Appellant.

2d Crim. No. B238060

(Super. Ct. No. F461608)

(San Luis Obispo County)

Robert Palomo appeals a judgment following conviction of three counts of 

oral copulation of a child less than 10 years old, and three counts of committing a lewd act 

on a child, with a finding that he committed the criminal offenses on more than one victim. 

(Pen. Code, §§ 288.7, subd. (b), 288, subd. (a), 667.61, subd. (e).)1 We affirm.

FACTS AND PROCEDURAL HISTORY

In 2011, the San Luis Obispo County prosecutor filed a second amended 

information charging Palomo with three counts of child molestation committed against 

I. Doe in 2007, two counts of child molestation committed against Elizabeth Doe in 2010, 

and one count of child molestation committed against Emily Doe in 2010. At trial, the 

prosecutor also presented evidence of an uncharged act of child molestation committed in 

1995 against C.O.

 

1 All further statutory references are to the Penal Code unless stated otherwise.
2

Sexual Offenses Committed Against I. Doe

(§§ 288.7, subd. (b) & 288, subd. (a).)

Palomo is the father of I. Doe, and T.C. is her mother. In 2007, I. lived with 

her mother but not her father. When I. was five or six years old, Palomo touched her 

"private part" with his "private" as well as his hand. He also placed his "private" in her 

mouth. I. felt "uncomfortable" and thought that Palomo's acts were "gross." I. also testified 

that when she was five years old, another man in the household touched her "private part."

When interviewed in 2007, I. stated that her father touched her 

inappropriately. On March 2, 2011, I. was interviewed again. She stated that her father put 

his "private" in her mouth when she was in her bedroom during a "time-out." I. described 

another occasion where Palomo placed his mouth on her genitals. She also stated that 

Palomo's brother Benjamin touched her inappropriately. The interviews of I. were recorded 

and at trial, played for the jury.

A physical examination of I. performed on April 30, 2007, revealed 

inflammation of her genitals consistent with sexual abuse. A DNA analysis performed in 

2011 on secretions deposited on I.'s underwear revealed semen consistent with the DNA 

profile of Palomo's brother Benjamin. 

Sexual Offenses Committed Against Elizabeth and Emily Doe

(§§ 288.7, subd. (b) [Elizabeth only] & 288, subd. (a).)

Elizabeth and Emily Doe are sisters who live with their great aunt and 

adoptive mother Debbie M. The M. family and Palomo's family became close friends. 

Occasionally, Palomo, his wife Anita, and their children would spend the night at the M. 

home in Oceano when Debbie M. was away. 

On one occasion when Emily was 9 or 10 years old, the Palomo family was 

staying in the M. home. Emily awoke when Palomo "was sticking his finger in [her] 

private." Emily "rolled over" to avoid him. Thereafter, she felt "uncomfortable" whenever 

Palomo was present. 

During June 2-4, 2010, the Palomo family again stayed in the M. home when 

Debbie M. attended an out-of-town graduation ceremony. While five-year-old Elizabeth 
3

was lying on Debbie M.'s bed, Palomo removed her underwear and "licked [her] private." 

After the Palomo family left and Debbie M. returned, Elizabeth informed her that Palomo 

"licked her pee-pee." Debbie M. then informed her social services counselor who reported 

the incident to law enforcement.

Approximately one week following Elizabeth's complaint of molestation, 

Emily also revealed to a social worker that Palomo had molested her.

1995 Molestation of C.O. 

In 1995, the O. family lived in Santa Maria, including C.O., who was then 

three years old. Palomo, then 13 years old, lived in the neighborhood and played with the 

older O. children. 

In May 1995, Mrs. O. entered the living room of her home and saw Palomo's 

hand inside C.O.'s pants, touching C.O.'s buttocks. Mrs. O. informed law enforcement and 

Palomo was arrested. After advisement and waiver of his rights pursuant to Miranda v. 

Arizona (1966) 384 U.S. 436, Palomo stated that he "molested" C.O. as they played video 

games. He stated that he "just put his hand down her pants," because "it just came to his 

head." Later, in a juvenile adjudication hearing, Palomo admitted that he molested C.O.

Palomo's Trial Testimony

Palomo testified at trial and denied molesting any of the children, including 

his daughter. Concerning C.O, he explained that he "reached [his] hand inside" her

sweatpants to remove "a foxtail." Palomo denied that he admitted to law enforcement that 

he molested C.O.

Palomo and his wife testified and accounted for their whereabouts and 

activities during the June 2010 weekend that Elizabeth had been molested. 

Palomo also testified that he had used methamphetamine and marijuana for 

many years. He confirmed that he behaved in inappropriate ways when he was under the 

influence of drugs. 

Conviction and Sentencing

The jury convicted Palomo of three counts of oral copulation of a child less 

than 10 years old, and three counts of committing a lewd act on a child. (§§ 288.7, subd. 
4

(b), 288, subd. (a).) It also found that he committed the criminal offenses on more than one 

victim, pursuant to section 667.61, subdivision (e). The trial court sentenced Palomo to four 

consecutive 15-year-to-life terms for counts 1, 3, 5 and 6, and stayed sentence for counts 2 

and 4 pursuant to section 654. It imposed a $10,000 restitution fine and a $10,000 parole 

revocation restitution fine (stayed), ordered victim restitution, and awarded Palomo 611 

days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1202.4, subd. (f).)

Palomo appeals and contends that the trial court erred by: 1) not dismissing 

the counts regarding I. due to pre-accusation delay; 2) improperly permitting evidence of the 

1995 molestation; 3) instructing with CALCRIM No. 1191; and 4) instructing with 

CALCRIM Nos. 1190 and 301.

DISCUSSION

I.

Palomo argues that the trial court erred by not dismissing the three counts 

involving I. due to pre-accusation delay. He contends that witnesses, including I.'s mother, 

T.C., were unavailable at the 2011 trial. Palomo asserts that the pre-accusation delay denied 

him due process of law pursuant to the federal and California Constitutions.

Prior to trial, Palomo sought to dismiss the counts involving I.'s 2007

molestation because T.C. could not be located.2 Palomo asserted that T.C. ("the lynchpin" 

of his defense) would have testified that I. reported that Benjamin Palomo molested her, and 

that drug users and parolees frequented the C. home. The prosecutor responded that he 

received corroboration of I.'s allegations in 2010 when Elizabeth and Emily complained of 

molestation, and I. was later reinterviewed. Also in 2011, DNA analysis revealed that 

Benjamin Palomo was the likely donor of secretions deposited on I.'s underwear. The 

prosecutor stated that prior to 2010-2011, he could not establish beyond a reasonable doubt 

that Palomo molested I. The trial court denied the motion to dismiss, stating that I. accused 

Palomo and his brother of molesting her, and that defense claims as to missing witnesses 

were speculative.

 

2 An arrest warrant existed for T.C.'s arrest. The trial court found that she likely made 

herself unavailable by evading service.
5

Constitutional principles of due process of law safeguard a defendant's interest 

in fair adjudication by preventing unjustified charging delays that weaken the defense 

through the dimming of memories, the death or disappearance of witnesses, and the loss of 

material physical evidence. (People v. Abel (2012) 53 Cal.4th 891, 908.) A defendant 

seeking relief for undue delay in filing charges must establish prejudice from the delay, such 

as the loss of material witnesses or evidence, or fading memories. (Ibid.) We do not 

presume prejudice from precharging delay. (Id. at pp. 908-909.) If the defendant 

establishes prejudice, the prosecution may offer justification for the delay. (Id. at p. 909.) 

The court then balances the harm to defendant against the justification for the delay. (Ibid.) 

If defendant does not establish prejudice, the court need not determine whether the delay 

was justified. (Ibid.) We review the court's ruling regarding charging delay for an abuse of 

discretion. (People v. Cowan (2010) 50 Cal.4th 401, 431.)

The trial court did not abuse its discretion because Palomo did not establish 

sufficient prejudice from the four-year delay. Evidence from other trial witnesses 

established that I. initially accused only Benjamin Palomo of molesting her. During her 

later interview with a social worker, she also implicated her father. Claims of prejudice 

from other unavailable witnesses were speculative and Palomo did not suggest what 

testimony they might provide. Indeed, the prosecutor stated that he intended to impeach 

T.C. with a statement that T.C. "wouldn't be surprised if [Palomo] did molest [I.] if he was 

using methamphetamine." Moreover, the prosecutor explained the delay as necessary to 

obtain additional evidence to prove the matter beyond a reasonable doubt. "A court should 

not second-guess the prosecution's decision regarding whether sufficient evidence exists to 

warrant bringing charges." (People v. Nelson (2008) 43 Cal.4th 1242, 1256.) Thus even if 

Palomo established minimal prejudice, the prosecutor presented sufficient justification for 

the delay. (Ibid. [further investigation may provide strong justification for delay].)

II.

Palomo contends that the trial court improperly admitted evidence of his 1995 

sexual offense against C.O. because the prior offense was remote in time, too dissimilar 

from the charged offenses, and inflammatory. (Evid. Code, §§ 1108, subd. (a) ["In a 
6

criminal action in which the defendant is accused of a sexual offense, evidence of the 

defendant's commission of another sexual offense or offenses is not made inadmissible by 

Section 1101, if the evidence is not inadmissible pursuant to Section 352"]; 1101, subd. (b), 

352.)3 He argues that admission of the evidence denied him due process of law pursuant to 

the federal and California Constitutions. Palomo also claims that section 1108 is 

unconstitutional, facially and as applied, asserting that the court did not perform a sufficient 

section 352 analysis.

In exercising its discretion to admit evidence of a prior sexual offense

pursuant to sections 1108 and 352, the trial court must consider such factors as the nature, 

relevance, and possible remoteness of the prior offense; the degree of certainty of its 

commission; the likelihood of confusing, misleading, or distracting jurors from their main 

inquiry; similarity to the charged offenses; any likely prejudicial effect upon the jurors; the 

burden on defendant to defend against the prior offense; and the availability of less 

prejudicial alternatives to its outright admission, such as defendant admitting that he 

committed the prior offense or the exclusion of irrelevant, inflammatory details regarding 

the prior offense. (People v. Loy (2011) 52 Cal.4th 46, 61.) Our Legislature has determined 

that prior sexual offense evidence is particularly probative, and there is a presumption in 

favor of its admission. (Id. at pp. 61-62.) We review the court's ruling pursuant to sections 

352 and 1108 for an abuse of discretion. (Id. at p. 61.) 

The trial court did not abuse its discretion in permitting evidence of the C.O. 

molestation because it was relevant to the credibility of the complaints of I., Elizabeth, and 

Emily that Palomo molested them. Section 1108 permits the factfinder to consider evidence 

of prior offenses for any relevant purpose, subject to the weighing process of section 352. 

(People v. Loy, supra, 52 Cal.4th 46, 63.) Palomo's defense concerned suggestions that the 

girls were mistaken or had been led by a social worker to accuse him.

The molestation of C.O. occurred 12 years before the molestation of I. 

Decisions have countenanced the admission of prior sex offenses that were similarly remote 

in time. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12-year gap]; People v. Branch

 

3 All statutory references in Parts II and III are to the Evidence Code.
7

(2001) 91 Cal.App.4th 274, 284-285 [30-year gap balanced out by substantial similarities 

between the prior and the charged offense].)

Moreover, the molestation of C.O. and Emily involved similar acts of 

touching young girls under their clothing. C.O. and Emily also were unaware of Palomo's 

acts or sleeping at the time. The acts against I. and Elizabeth involved oral copulation. All 

of the children were in the general age range of three years old (C.O.) to nine years old 

(Emily) at the time of the acts.

Importantly, the 12-year time difference between the molestation of C.O. and 

the M. family victims permits the reasonable inference that Palomo engaged in molesting 

young girls from his adolescence continuing into young adulthood. Although Palomo grew 

older, the age of his victims remained nearly the same. 

Palomo's reliance on People v. Harris (1998) 60 Cal.App.4th 727 does not 

assist him. There, the prior offense was a violent sex offense and evidence of it was 

"inflammatory in the extreme." (Id. at p. 738.) The charged sexual offenses were not 

forcible but involved breaches of trust. (Ibid.) These circumstances do not exist here. 

(People v. Loy, supra, 52 Cal.4th 46, 64 [distinguishing Harris].) 

The jury also was not likely to convict Palomo of the charged crimes to punish 

him for the crime against C.O. He admitted molesting C.O. in a juvenile adjudication 

hearing and his commission of that crime was certain and established. (People v. Loy, 

supra, 52 Cal.4th 46, 60-61.) He "bore no new burden of defending against the [prior] 

charges." (Id. at p. 61.)

In People v. Falsetta (1999) 21 Cal.4th 903, 916-922, our Supreme Court 

rejected a due process challenge to section 1108. In People v. Loy, supra, 52 Cal.4th 46, 60, 

our Supreme Court declined to reconsider its holding in Falsetta. (People v. Holford (2012) 

203 Cal.App.4th 155, 183.) We are bound by these decisions. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, the trial court did not abuse its 

discretion in admitting evidence of the molestation of C.O. following the arguments of 

counsel and application of the weighing process and evidentiary considerations of section 
8

352. Thus, as applied to Palomo, evidence of the earlier molestation did not impair his 

constitutional rights to a fair trial and to due process of law.

III.

Palomo argues that the trial court erred by instructing with CALCRIM No. 

1191 ("Evidence of Uncharged Sex Offense"), asserting that the instruction is 

unconstitutional. He concedes that our Supreme Court held that a predecessor instruction 

(CALJIC No. 2.50.01) is constitutional, but raises the constitutionality argument to preserve 

the point for federal court review. (People v. Reliford (2003) 29 Cal.4th 1007, 1011-1016

[CALJIC No. 2.50.01 is a correct statement of the law].)

People v. Reliford, supra, 29 Cal.4th 1007, considered an instruction similar to 

CALCRIM No. 1191, and concluded that it: properly reflected the law set forth in section 

1108, permitted the factfinder to consider prior sex offenses to prove criminal disposition, 

allowed for permissible and appropriate inferences, and did not violate due process of law. 

(Reliford, at pp. 1011-1016.) Our Supreme Court later considered a different version of 

CALJIC No. 2.50.01, and concluded that instruction also was constitutional, relying upon 

Reliford. (People v. Loy, supra, 52 Cal.4th 46, 71-76.) We are bound by the decisions of 

our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.) 

Accordingly, we reject Palomo's contention.

IV.

Palomo contends that the trial court erred by instructing with CALCRIM No. 

1190 ("Other Evidence Not Required to Support Testimony in Sex Offense Case") because 

it is a pinpoint instruction on a subject already addressed by the neutral CALCRIM No. 301

("Single Witness's Testimony"). He asserts that CALCRIM No. 1190 improperly lightened 

the prosecution's burden of proof and constitutes reversible error. 

The trial court instructed with CALCRIM No. 1190 that, "Conviction of a 

sexual assault crime may be based on the testimony of a complaining witness alone." It also 

instructed with CALCRIM No. 301 that, "The testimony of only one witness can prove any 

fact. Before you conclude that the testimony of one witness proves a fact, you should 

carefully review all the evidence." 
9

In People v. Gammage (1992) 2 Cal.4th 693, 700, our Supreme Court 

concluded that the predecessor versions of CALCRIM No. 1190 (CALJIC No. 10.60) and 

CALCRIM No. 301 (CALJIC No. 2.27) "considered separately, correctly state the law." 

Although the two instructions "overlap to some extent, each has a different focus." (Ibid.) 

The former version of CALCRIM No. 301 concerns the evaluation of a fact proved solely 

by the testimony of a single witness. (Ibid.) The former version of CALCRIM No. 1190 

declares a rule of substantive law, that the testimony of the complaining witness need not be 

corroborated. (Id. at pp. 700-701.) Gammage decided that the instructions in combination 

did not create a preferential credibility standard for the complaining witness in a sexual 

assault prosecution. (Id. at p. 701.) "Neither [instruction] eviscerates or modifies the other. 

. . . The instructions in combination are no less correct, and no less fair to both sides, than 

either is individually." (Ibid.) Gammage also rejected the argument that jurors are 

generally aware that there is no legal requirement of corroboration. (Ibid. ["[T]here remains 

a continuing vitality in instructing juries that there is no legal requirement of 

corroboration"].)

Accordingly, we reject Palomo's contention. (Auto Equity Sales, Inc. v. 

Superior Court, supra, 57 Cal.2d 450, 455.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.
10

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Julie Sullwold, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, 

Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for 

Plaintiff and Respondent.