1 

Filed 10/15/14 P. v. Mitchell CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(El Dorado) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

KELLY C. MITCHELL, 

 Defendant and Appellant. 

C068664 

(Super. Ct. No. P09CRF0064) 

 Defendant Kelly C. Mitchell appeals following conviction on 11 counts of sex 

offenses against three minors. (Pen. Code, §§ 288, subd. (a), 288, subd. (c)(1), and 

288.51.) Two of the victims are daughters of defendant’s cohabitant girlfriend; the third 

victim is defendant’s own biological daughter from a different relationship. 

 

1 Undesignated statutory references are to the Penal Code in effect at the time of 

defendant’s crimes. 
2 

On appeal, defendant contends (1) the trial court abused its discretion in admitting 

evidence of uncharged sexual misconduct; (2) his “one strike” sentence (§ 667.61) as to 

counts related to one of the victims was improper because there was no finding that any 

of the acts alleged to have occurred between August 1, 1994, and August 31, 2001, were 

committed after the date the law took effect on November 30, 1994; (3) the trial court 

overcharged him $40 for court security fees (§ 1465.8), an issue he acknowledges is 

rendered moot by the trial court’s issuance of an amended abstract of judgment, and (4) 

the trial court shortchanged him on presentence credits (§§ 4019, 2933.1). 

We order correction of the presentence credits and otherwise affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

The Charges 

An information charged defendant with six counts of lewd and lascivious acts 

upon a child under age 14, four counts of lewd and lascivious acts upon a child age 14 by 

a person at least 10 years older than the child, and continuous sexual abuse of child under 

age 14. Jane Does 1 and 2 are the daughters of defendant’s girlfriend/fiancée. Jane 

Doe 3 is defendant’s biological daughter by another relationship. 

 Specifically, the pleading alleged: 

Count 1: Lewd act upon Jane Doe 1, a child under age 14, between October 1 

and October 31, 2006 (§ 288, subd. (a)); 

Count 2: Continuous sexual abuse of Jane Doe 1, a child under age 14, between 

November 2006 and November 3, 2008 (§ 288.5), by engaging in “three and [sic] more 

acts” of “substantial sexual conduct” (§ 1203.066, subd. (b)) and “three and [sic] more 

acts” in violation of section 288, while the defendant resided with and had recurring 

access to the child; 

Count 3: Lewd acts upon Jane Doe 1, then age 14 and at least 10 years younger 

than defendant, between November 4, 2008, and January 31, 2009 (§ 288, subd. (c)(1)); 
3 

Count 4: Lewd acts upon Jane Doe 1, then age 14 and at least 10 years younger 

than defendant between November 4, 2008 and January 31, 2009 (§ 288, subd. (c)(1)); 

Count 5: Lewd acts upon Jane Doe 2, a child under age 14, between August 1, 

2006, and September 22, 2007 (§ 288, subd. (a)); 

Count 6: Lewd acts upon Jane Doe 2, a child under age 14, between August 1, 

2006 and September 22, 2007 (§ 288, subd. (a)); 

Count 7: Lewd acts upon Jane Doe 2, then age 14 and at least 10 years younger 

than defendant, between September 23, 2007, and June 1, 2008 (§ 288, subd. (c)(1)); 

Count 8: Lewd acts upon Jane Doe 2, then age 14 and at least 10 years younger 

than defendant, between September 23, 2007, and June 1, 2008 (§ 288, subd. (c)(1)); 

Count 9: Lewd acts upon Jane Doe 3, a child under age 14, between August 1, 

1994, and August 31, 2001 (§ 288, subd. (a)); 

Count 10: Lewd acts upon Jane Doe 3, a child under age 14, between August 1, 

1994, and August 31, 2001 (§ 288, subd. (a)); and 

Count 11: Lewd acts upon Jane Doe 3, a child under age 14, between August 1, 

1994, and August 31, 2001 (§ 288, subd. (a)). 

 The pleading also alleged multiple victims for sentencing purposes under section 

667.61, subdivisions (b), (c), and (e). 

 The offenses occurred in El Dorado County, except the offenses concerning Jane 

Doe 3, which occurred in Sacramento and were joined in this El Dorado County 

prosecution pursuant to section 784.7, subdivision (a). 
4 

Evidence Code Section 1108 In Limine Motion 

 The prosecutor moved in limine to admit evidence under Evidence Code section 

11082 of prior sexual offenses defendant committed against four young girls (Jane Does 4 

through 7) while in Utah. Specifically, the prosecutor sought to admit evidence that: 

 (1) Defendant fondled the breasts and vagina of his step-niece, Jane Doe 4, 

between 1974 and 1980, when she was seven or eight until she was 15 years old, and 

penetrated her vagina with his finger when she was 12 or 13; 

 (2) In 1980, defendant rubbed the vagina of 14-year-old Jane Doe 5; 

 (3) In 1982, defendant stroked the outside of the vagina of his nine-year-old niece, 

Jane Doe 6; and 

 (4) In 2001, he put his penis in the vagina of his 14-year-old niece, Jane Doe 7. 

 Defense counsel opposed the motion in limine, on the grounds the evidence was 

remote, inflammatory, and so prejudicial as to render the trial fundamentally unfair in 

violation of due process. Defense counsel argued the “biggest concern” was the 

remoteness of three out of the four uncharged incidents. 

 The trial court ruled the evidence admissible. The court said Evidence Code 

section 1108 clearly allowed it, and the question was whether it should be excluded under 

Evidence Code section 352. The court said, “What I note is that the conduct that is 

alleged in the Complaint and the conduct that is purportedly alleged by these [Evidence 

Code section] 1101 [sic] witnesses is almost identical: Family members or close friends. 

The time period is not even that far off. This is a 1993 [sic, 1994]. 2001, the current 

 

2 Evidence Code section 1108 provides in pertinent part: “(a) In a 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 [character evidence inadmissible to prove conduct on specific occasion], if the 

evidence is not inadmissible pursuant to Section 352 [trial court may exclude evidence if 

its probative value is substantially outweighed by danger of undue prejudice, undue 

consumption of time, confusion of issues or misleading jury].” 
5 

matter. [¶]...[¶] And so it appears to me that where the issue is identification and the 

Defendant’s disposition to commit these sorts of crimes, that the jury is entitled to hear 

this information, and I’m going to allow the Doe witnesses to present their testimony 

under 1108.” 

Prosecution Trial Evidence Regarding Jane Does 1 and 2 

 Jane Doe 1 (born November 1994) and Jane Doe 2 (born September 1993) are the 

daughters of defendant’s live-in girlfriend/fiancée, K.B. In 2006, defendant, who was 

born in 1960, moved into K.B.’s home with her, her two daughters, and her three sons. 

K.B. had a full time job from 7:00 a.m. to 3:30 p.m. Defendant did not have a job. He 

worked from home, selling Hot Wheels and used motorcycle parts on eBay. 

 Jane Doe 1, age 16 at the time of trial, testified that one night in October 2006, 

when Jane Does 1 and 2 were ages 11 and 12, defendant became very drunk. K.B. and 

the children had all gone to bed. Jane Doe 1 testified that defendant came into her 

bedroom, removed her pants, touched her breasts and vagina, and put his mouth on her 

vagina. Defendant sat between her legs and inserted something into her vagina, which 

began to hurt. She kept her eyes shut, hoping he would stop. He replaced her pants, said 

he loved her, and left the room. The next day, he did not act differently toward her. She 

did not tell anyone at the time, because she was trying to pretend it did not happen. After 

that night, defendant routinely touched Jane Doe 1’s breasts, vagina and buttocks, both 

over and under her clothing, when they were alone or in the presence of her siblings, 

almost daily until he stopped living there. She tried to tell him to stop, but he ignored 

her. She told her sister, who said defendant did the same thing to her. Jane Doe 1 once 

saw defendant grab her sister Jane Doe 2’s “boob” and “butt.” Jane Doe 1 did not tell her 

mother because she did not want to ruin her mother’s happiness. She felt her mother 
6 

would pick her boyfriend over her daughter.3 And she would not have told Children’s 

Protective Services (CPS) what defendant was doing, because she was afraid CPS would 

take her away from her mother, as they did once in Utah because the home was not clean. 

Jane Doe 2, age 17 at the time of trial, testified defendant touched her breasts and 

vagina and rubbed her vagina with his finger, both over and under her clothing. She 

remembered defendant touching her one night when he had been drinking. He continued 

to touch her on a regular basis, despite her asking him to stop. She told her mother, who 

called her a liar. The abuse stopped when she moved to Utah to live with her father in 

2008. 

 In 2009, Jane Doe 1 disclosed the abuse to her mother’s friend, Cristin Geil, who 

was staying with them. Geil testified that Jane Doe 1 said she and her sister had told their 

mother, who told them to give defendant another chance. Geil did not talk to K.B. about 

what Jane Doe 1 had said because K.B. had not been responsive to Jane Doe 1’s earlier 

complaint. Instead, Geil contacted the police. 

 The police asked K.B. to bring Jane Doe 1 to the police station, where Jane Doe 1 

told a detective about the abuse. The detective testified that, when he told the mother 

what the daughter had said, she seemed devastated. As if “a light bulb went off” in her 

head, she interrupted him and recalled an incident about two years earlier when defendant 

had come to bed extremely intoxicated and told her he had done terrible things and did 

not deserve her. 

 The victims’ brother Robert testified he never saw and never told the police 

detective that he saw defendant put his hand on either girl’s breast as they watched 

movies. Robert said the girls seemed to love defendant. 

 

3 Jane Doe 1 testified that the fact her mother visited defendant in the jail during the 

pendency of the case made her feel like her mother believed defendant over her and 

would rather pick defendant over her own daughter. 
7 

 Robert’s trial testimony was impeached. The detective testified Robert told him 

that defendant would touch the girls’ chest area or “touched over her boob” when one or 

the other sat on his lap to watch movies. The jury heard an audiotape of the interview. 

The detective testified that, as Robert made the statement, he demonstrated by touching 

his own breast area with his hand. 

 A former resident services coordinator who saw the children regularly for afterschool programs testified she noticed a complete change in the children -- from happy to 

sullen -- after their mother’s new boyfriend moved in.4 In September 2006, the witness 

called CPS after Jane Doe 2 said her mother’s new boyfriend was bathing and dressing 

her. The witness was not privy to the CPS investigation but contacted CPS again when 

Jane Doe 2 later told her she had lied to CPS because she did not want to be taken away 

from her mother and her home. Jane Doe 2 testified she concealed the abuse when 

questioned by CPS because she did not want to get her mother in trouble. 

 K.B. testified she did not recall her daughters ever telling her that defendant had 

touched them inappropriately, and she would remember it if they had done so. Jane 

Doe 2 may have said she did not want defendant in her bedroom, but the mother would 

have associated that with the child being headstrong and resenting him when he 

reprimanded them. The girls otherwise displayed affection toward defendant. K.B. 

testified she still loved defendant, visited him in jail as often as she could, and still 

planned to marry him. She admitted she saw pornography on defendant’s computer that 

appeared to be “older teens,” but he told her they were underdeveloped adults. On crossexamination, K.B. testified defendant later clarified what he meant when he drunkenly 

told her she did not know what kind of person he was, what he had done in the past. The 

 

4 The witness sometimes saw the boyfriend on the second-story deck of the apartment 

but by the time of trial, she could not identify defendant. 
8 

trial court sustained the prosecutor’s hearsay objection as to how defendant clarified his 

comments. 

 The police found several hundred child erotica images without sexual activity on 

computers seized from the home, as well as files waiting to be downloaded per user 

request, with titles such as “My daughter’s first painful time as I brutally rape her in my 

truck” and “Teen Incest.” 

Prosecution Evidence Regarding Jane Doe 3 

 Jane Doe 3 is the daughter of defendant and L.M. Defendant and L.M., had been 

married, and also had a son, Jane Doe 3’s younger brother. L.M. worked during the day. 

Defendant was not employed and stayed home during the day with Jane Doe 3. 

Jane Doe 3, age 17 at the time of trial, testified she was born in November 1993 

and last saw defendant when she was seven years old. She remembers incidents that 

occurred when they lived in an apartment in a Sacramento duplex on Stockton Boulevard. 

Jane Doe 3’s mother, defendant’s ex-wife, testified they moved to that duplex when Jane 

Doe 3 was five years old. Before that, they lived on a ranch and in a trailer. 

 Jane Doe 3 testified defendant often played pornography on his computer while 

she was in the room. He showered with her and washed her but sometimes touched her 

in a sexual way, different from a washing or cleaning touch.5 A couple of times, he took 

her into her bedroom, had her lie on the bed, removed her clothes or had her remove 

them, touched her vagina, put his fingers inside her, and tried to put his penis inside her. 

It hurt. She cried and tried to tell him to stop but he would not stop. Once in a while he 

 

5 Although Jane Doe 3 recounted the showers as having occurred in the duplex, she also 

said they occurred when she was three or four years old. Jane Doe 3 also remembered 

the molestations occurring around the time her brother was a year or two old. According 

to the mother, they moved to the duplex when Jane Doe 3 was about five years old and 

the brother was about one month old. Jane Doe 3 remembered having her own bedroom, 

but her mother testified the duplex had only one bedroom, though defendant usually was 

not home at night because he was a musician. 
9 

touched her bottom, and she thought he put his penis in her bottom. She testified she was 

certain the bedroom incidents happened when she was around four or five years old, not 

two or six years old. She did not tell her mother because she was scared about what 

would happen. Because it was hard for Jane Doe 3 to talk about what happened, before 

trial she wrote down some things she remembered. The prosecutor read them aloud, and 

Jane Doe 3 testified she wrote them and they are true. Among these items were that 

defendant “smacked me and hit me when I did something wrong. A lot of the time [he] 

would hit or smack me in the side of the head....” Also, “The sexual abuse that I 

remember is him locking me in my room and telling me to lay down on my bed. If I 

didn’t listen he would get mad at me so I had to listen. Then he would tell me to lay 

down on my stomach and take off my pants. And then [defendant] would get on top of 

me and try to get his dick inside of me or he would make me bend over on my knees and 

he would play with me and put his fingers inside of me. And I would cry and try to tell 

him to stop but he wouldn’t.” 

 L.M. testified that she left defendant when Jane Doe 3 was about seven years old, 

after defendant became angry at their son when he accidentally locked himself in the 

bathroom, and defendant took a hammer to the door, smashing the boy’s hand. In 2001, 

L.M. obtained a “kick-out” order, and defendant moved back to Utah. A week or two 

later, L.M. received a phone call from defendant’s mother, who suggested having Jane 

Doe 3 “checked out to make sure she was okay,” because defendant had “gotten into 

trouble and possibly raped Jane Doe 7.”6 L.M. spoke with Jane Doe 3, who disclosed 

what defendant did to her. L.M. took her daughter to a doctor and obtained counseling 

for her through their church. L.M. testified she did not call the police, because she called 

a Children’s Protective Services (CPS) hotline and was told she could be “considered 

 

6 The trial court allowed this evidence as going to the state of the mind of the ex-wife, to 

explain her subsequent actions. 
10 

guilty” for failing to protect the child. L.M. did not talk to law enforcement until they 

approached her as part of the investigation in this case. 

Trial Evidence of Uncharged Sexual Misconduct 

 Before introducing the uncharged sexual misconduct evidence, the prosecutor told 

the court that she intended to call not only the victims, but also witnesses who would 

testify that the victims disclosed the sexual abuse long before defendant was arrested for 

the current charges. The prosecutor argued that the testimony was relevant to dispel the 

defense’s insinuation of a “witch hunt conspiracy” and would not be time-consuming. 

The defense argued the evidence was remote and unreliable. The trial court determined 

the probative value outweighed any prejudicial effect and allowed the fresh complaint 

evidence regarding the Evidence Code section 1108 witnesses. 

Jane Doe 4 

Jane Doe 4 testified she was born in 1966, and when she was about eight years 

old, her mother married defendant’s brother. When she was eight or nine years old, she 

and defendant, who was then 13, sometimes slept in the yard of his father’s house, and 

defendant kissed her, touched her breasts, put his hand down her pants, and touched her 

vagina. It happened several times. The first time it happened, defendant was with a 

friend of his named “Wally,” who also molested Jane Doe 4. She then did not see 

defendant for a while after her stepfather died. Jane Doe 4 saw defendant again when she 

was 12 or 13, and he was about age 20. Because of problems at home, she sometimes 

stayed at the home of defendant’s sister. Often when she was alone with defendant, he 

play-wrestled, grabbed her vaginal area outside her clothes, pulled down her shirt, 

forcibly kissed her, and put his hands in her pants and his fingers inside her vagina. The 

incidents stopped when she was about 15 and no longer frequented defendant’s sister’s 

house. 

 Jane Doe 4’s mother testified that in the late 1980’s or early 1990’s, Jane Doe 4 

told her about being molested years earlier by defendant as well as other molestations by 
11 

her grandfathers. By that time, Jane Doe 4 was grown and married and her grandfathers 

were deceased. The mother did not contact law enforcement. 

Jane Doe 5 

 Jane Doe 5 testified that in 1980, when she was almost 14, her brother-in-law 

brought defendant into her mother’s house in Utah.7 The two men were accompanied by 

another male named Wally Duncan. She had been alone in the house before the men 

arrived. Jane Doe 5 had never previously seen defendant. Defendant immediately 

approached Jane Doe 5 in the kitchen and started saying derogatory things about his body 

parts. He told her, “suck my dick. I have a big head,” and pushed and smacked her 

around, pushed her into a bedroom next to the kitchen, pushed her on the bed and 

smacked her. She screamed for help to her brother-in-law and Wally, who were in the 

next room in this small house, but they did nothing. Jane Doe 5 said the men “acted like 

they turned their head.” Defendant grabbed her breasts and vagina and was “all over 

[her].” She hit him with a lamp, and he ran out of the house with her brother-in-law and 

Wally. She immediately called the police. 

Jane Doe 6 

 Jane Doe 6, who is defendant’s niece and Jane Doe 4’s stepsister, testified that in 

1982, when she was nine years old, defendant gave her a ride from California to Utah. A 

few days later, defendant was in his car parked in his mother’s driveway when he 

persuaded her to get in the car. He pulled her pants down and touched her vagina. He 

stopped when his sister drove up, and quickly left. Jane Doe 6 immediately told the sister 

what happened and then told defendant’s mother, who accused Jane Doe 6 of lying and 

told her shut up and stop talking about it. 

 

7 Jane Doe 5 was in foster care and visiting her mother’s house at the time of this 

incident. 
12 

Jane Doe 7 

 Jane Doe 7 testified that in August 2001, she was 14 and living in Utah with her 

uncle, who is her father’s brother and who previously had been married to defendant’s 

sister. Jane Doe 7 slept on a couch. Defendant, who had just moved to Utah, began 

staying in a different room at the same home. 

 One night defendant had come home drunk, stumbled and fell on Jane Doe 7 as 

she was sleeping on the couch. He asked her to help him to his room and she did so. 

Once in the room, defendant told her to sit in a chair and asked if she wanted a beer. She 

accepted and he gave her a beer. While they were sitting in the room, defendant was 

looking at pornography on his computer. Defendant shut and locked his door and told 

her to sit with him on the futon. When she did, defendant took off her pants, and raped 

her. When he took off her pants, she asked to stop, but he did not. He told her not to tell 

anyone. 

 The next morning, defendant made comments to Jane Doe 7 like, “Good morning, 

baby,” and “I just want to marry you.” Jane Doe 7 left with her friend to go swimming at 

the trailer park pool. Jane Doe 7 testified that defendant came to the pool and touched 

Jane Doe 7’s friend. Jane Doe 7 left the pool and went to her cousin’s house, where she 

told the cousin and the cousin’s friend what had happened the previous night. She was 

later interviewed by the police. Thereafter, it was not brought up again. She never went 

to court regarding this event. 

 The cousin’s father is the uncle with whom Jane Doe 7 was staying. Defendant is 

the brother of the cousin’s father. The cousin testified that on a date not too long after 

defendant arrived in Utah from California, while defendant was living with her father and 

Jane Doe 7 she picked up Jane Doe 7 at the pool. Jane Doe 7 told her defendant was 

sticking his hands in her swimming suit. When the cousin said she was going to tell her 

father, Jane Doe 7 said she had something else to tell her. Jane Doe 7 started to shake, 
13 

tremble, and cry and told the cousin defendant had sex with her the previous night. The 

cousin immediately called the police. 

 Before the police arrived, the cousin told her father. Around that time, defendant 

rode up on his bike. The cousin and the cousin’s father then confronted defendant, who 

denied it. He then took off on his bike and never returned. He left his belongings at the 

cousin’s father’s house, and the cousin did not see defendant until “years later.” 

 The cousin’s friend testified that he saw defendant groping Jane Doe 7’s breasts at 

the pool. Later that day, he had a conversation with her. She was visibly shaken and did 

not really want to talk. He asked her what had happened and she told him that the night 

before she had been sleeping on the couch, defendant tripped and landed on top of her. 

She woke up and he offered her a cigarette. She said defendant told her that if she 

wanted a cigarette, she would have to come into defendant’s room. After they went into 

the room, defendant gave her a cigarette and then took nude photos of her with his 

webcam and refused to take the photos off his computer because he was going to sell 

them on the Internet. She also said defendant raped her. 

Defense Evidence 

 Defendant testified. Regarding Jane Does 1 and 2, he denied any inappropriate 

touching. He said sometimes one of the girls sat on his knee as they watched movies, and 

he held her with his arm around her. He said they made up their story because they 

wanted him out of the house because he disciplined them when they did something 

wrong. He was strict, and their mother was lenient. 

Defendant said he got very drunk one night and slept in his own vomit. He told 

Kellie what a bad person he was, and that he had done some terrible things in his past. 

He was just having a “pity party” because he is not successful, and Kellie is a special 

lady. He was not referring to raping young girls or anything specific, other than “like 

with my problems with -- like with Carolyn,” a former girlfriend whose drug use and 

mental instability caused him to hit her and be convicted for domestic violence. 
14 

 Defendant said Cristin Geil, the houseguest who reported the molestation, lied on 

the witness stand. He disliked her and had a dispute with her, because she ran up the 

electric bill and would not help pay it. 

 Regarding his daughter, Jane Doe 3, defendant denied any inappropriate touching 

or exposing her to pornography. He sometimes showered with her in order to wash her. 

There was no bathtub in the house, just a shower. He guessed Jane Doe 3’s accusations 

were instigated by her mother, who hated defendant because the child liked him better 

than the mother. 

 Defendant admitted looking at pornographic pictures on his computer of girls that 

appeared to look underage when living with K.B. and Jane Doe 1 and 2, but he said they 

did “not really” arouse him sexually. He said pornography did not excite him sexually. 

When asked, “no or not really? Which one is it?” he said, “No.” 

 Defendant denied all of the uncharged sexual misconduct. Regarding Jane Doe 4, 

defendant had no interest in her and only remembered sleeping outside with her brother, 

not with her. Defendant called Jane Doe 5 “ ‘the crazy one.’ ” He said he had met her at 

Wally’s house and did not like her because she was “cocky, mouthy.” All he did was say 

something “very derogatory” to her, because he disliked her, and she “went psycho” and 

began screaming, so he left. He said he did not remember exactly what he said to her. At 

one point he described what he said to her as “lewd comments.” At another point he 

testified he said something about “[h]ow big she was, or something like that.” Regarding 

Jane Doe 6, defendant did not remember driving her between California and Utah, and he 

said the driveway molestation she described “[n]ever happened.” Regarding Jane Doe 7, 

defendant testified she came into his room for a cigarette, drank a beer, and “That was the 

end of that.” When asked why all these people from Utah would come and testify against 

him, defendant said his family in Utah dislike him and have a way of getting other people 

to say “ ‘Hey,’ whatever.” He admitted it had been 23 years since he last saw any of 

these people from Utah. 
15 

 While defendant denied misconduct with any of the Does (except for making lewd 

comments to Jane Doe 5) and insisted the witnesses were lying or confused, some of his 

answers on cross-examination were telling, such as: 

 “Q. When is the last time you drank? 

 “A. The night that I got sick and threw up and slept in my own puke. 

 “Q. The night that [Jane Doe 1] was raped? 

 “A. I don’t know if that’s the night or not.” 

 [¶]...[¶] 

 “Q. Well, weren’t you drinking the night that [Jane Doe 7] was raped? 

 “A. Yeah. 

 “Q. Okay. And you were drinking when you were over and attacked [Jane 

Doe 5], correct? 

 “A. No. 

 “Q. You weren’t drinking that day there with Wally? 

 “A. No. 

 “Q. No? 

 “A. No. 

 “Q. So you weren’t talking about what you had just done that night when you 

were apologizing to Kellie; is that what you’re saying today? 

 “A. That’s what I’m saying.” 

 [¶]...[¶] 

 “Q. Okay. So the day that you attacked her [Jane Doe 5], had you seen her 

before? 

 “A. Yeah, I’d met her before.” 

 [¶]...[¶] 

 “Q. How long had you been there? 

 “A. Where? 
16 

 “Q. In Utah when the incident with [Jane Doe 7] -- when you raped [Jane Doe 7]? 

 “A. I don’t know. About three weeks.” 

 Another defense witness was a friend of defendant’s, who knew K.B. and Jane 

Does 1 and 2, and never saw anything unusual between defendant and Jane Does 1 or 2. 

A facilitator for an anger management class testified defendant successfully completed 

the court-ordered class and seemed honest and sincere. 

Verdicts and Sentencing 

 The jury found defendant guilty on all counts and found true the multiple victim 

allegation. 

 The trial court subsequently sentenced defendant to a determinate term of 18 years 

8 months and an indeterminate term of 90 years to life, consisting of consecutive terms of 

15 years to life on each of Counts 1, 5, 6, 9, 10 and 11, plus the upper term of 16 years on 

Count 2, and four consecutive one-third middle terms of eight months on Counts 3, 4, 7, 

and 8. 

DISCUSSION 

I. Evidence Code Section 1108 Evidence 

A. Constitutional Challenges 

 Defendant argues the trial court abused its discretion by admitting evidence of the 

uncharged acts involving Jane Does 4 through 7, thereby violating his right to equal 

protection and due process. We disagree. 

 Evidence Code section 1108 (see fn. 2, ante) permits evidence of uncharged 

sexual misconduct in a sex offense prosecution, for the purpose of showing propensity to 

commit sex offenses. (People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).) The 

principal justification allowing this propensity evidence is that sex crimes, by their very 

nature, are usually committed in seclusion without third party witnesses or substantial 

corroborating evidence; thus, the trial often presents conflicting versions of the event and 

requires the trier of fact to make difficult credibility determinations. (Id. at p. 915.) 
17 

Our high court in Falsetta held Evidence Code section 1108 does not violate due 

process. The court acknowledged the general rule prohibiting propensity evidence due to 

its potential prejudice but held there was no undue unfairness in light of the substantial 

protections afforded to the defendants in such cases, requiring the trial court to engage in 

a careful weighing process under Evidence Code section 352. (Falsetta, supra, 21 

Cal.4th at p. 915; accord, People v. Wilson (2008) 44 Cal.4th 758, 796-799.) “[T]he trial 

court’s discretion to exclude propensity evidence under section 352 saves section 1108 

from defendant’s due process challenge.” (Falsetta, at p. 917.) “Rather than admit or 

exclude every sex offense a defendant commits, trial judges must consider such factors as 

its nature, relevance, and possible remoteness, the degree of uncertainty of its 

commission and the likelihood of confusing, misleading, or distracting the jurors from 

their main inquiry, its similarity to the charged offense, its likely prejudicial impact on 

the jurors, the burden on the defendant in defending against the uncharged offense, and 

the availability of less prejudicial alternatives to its outright admission, such as admitting 

some but not all of the defendant’s other sex offenses, or excluding irrelevant though 

inflammatory details surrounding the offense. [Citations.]” (Falsetta, at pp. 916-917.) 

 Defendant acknowledges Falsetta defeats his argument that Evidence Code 

section 1108 violates due process. Ignoring the fact that our high court was asked to 

reconsider its holding in Falsetta that section 1108 is constitutional and found no good 

reason to do so in People v. Loy (2011) 52 Cal.4th 46, 60, defendant argues Falsetta was 

wrongly decided. We, of course, are bound by the opinions of the California Supreme 

Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450), and this court has 

previously rejected a similar constitutional argument concerning section 1108 evidence 

for that reason. (People v. Holford (2012) 203 Cal.App.4th 155, 183.) Indeed, this court 

rejected similar arguments prior to the Falsetta decision in People v. Fitch (1997) 55 

Cal.App.4th 172, 178-184 (Fitch), and the high court adopted this court’s reasoning in 

Fitch in deciding Falsetta. (Falsetta, supra, 21 Cal.4th at pp. 912-915.) 
18 

 Defendant argues Evidence Code section 1108 violates equal protection, a matter 

he says was not decided by the California Supreme Court. Defendant cites People v. 

Hoover (2000) 77 Cal.App.4th 1020, 1026-1027, as relying upon Falsetta to reject due 

process and equal protection challenges to Evidence Code section 1109, which allows 

admission of evidence of prior domestic violence in a prosecution for domestic violence. 

Defendant claims Hoover relied upon Falsetta, which must be reconsidered in light of a 

federal case, Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), reversed on 

other grounds in Woodford v. Garceau (2003) 538 U.S. 202 [155 L.Ed.2d 363]. 

 Defendant’s equal protection argument fails for multiple reasons. First, the 

Hoover opinion cited by defendant does not mention the term “equal protection.” The 

term was mentioned in a previous, superseded opinion, but without discussion. (People 

v. Hoover (1998) 64 Cal.App.4th 1422, review granted Sept. 23, 1998, S072374.) 

However, equal protection was discussed by the Falsetta court which, after adopting this 

court’s due process analysis in Fitch, upheld the constitutionality of Evidence Code 

section 1108 against an equal protection claim, also citing Fitch. The court in Falsetta

observed, “Fitch likewise 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 largely credibility contests. [Citation.] As Fitch stated, ‘The 

Legislature is free to address a problem one step at a time or even to apply the remedy to 

one area and neglect others....’ ” (Falsetta, supra, 21 Cal.4th at p. 918.) Other courts 

have recognized the Fitch and Falsetta rejection of the same equal protection challenge 

to section 1108 defendant makes here. (See People v. Robertson (2012) 208 Cal.App.4th 

965, 994 (Robertson).) 

 Moreover, Garceau, the federal case relied upon by defendant, was neither a sex 

offense case nor an equal protection case. It was a homicide case in which the court 

found a reversible due process violation in a jury instruction that allowed the jury to draw 
19 

an inference of criminal propensity from evidence of uncharged drug trafficking activity 

and an unrelated murder. That case has no applicability here. 

Defendant overlooks the fact that the Federal Rules of Evidence allow evidence of 

other acts of child sexual molestation to show propensity. (Fed. Rules Evid., 

rule 414(a).8) He virtually ignores the fact that due process and equal protection claims 

concerning those rules have been rejected by federal courts. (See United States v. LeMay

(9th Cir. 2001) 260 F.3d 1018 (LeMay) [admission of other acts of child sexual 

molestation to show propensity under Federal Rules of Evidence, rule 414, did not violate 

due process or equal protection9; see also Mejia v. Garcia (9th Cir. 2008) 534 F.3d 1036, 

1047, fn. 5 [rejecting a California defendant’s federal habeas corpus claim that Evidence 

Code section 1108 is unconstitutional and pointing out the analogous Federal Rules of 

Evidence and the LeMay decision holding that the Federal Rules do not violate due 

process or equal protection.].) Our high court, on the other hand, specifically noted the 

Ninth Circuit’s decision in LeMay when it declined to revisit the constitutionality of 

section 1108 in Loy. (Loy, supra, 52 Cal.4th at pp. 60-61.) 

 We reject defendant’s constitutional challenges. 

B. Admissibility of Uncharged Sexual Misconduct Evidence In This Case 

 Defendant argues it was improper to admit evidence of the uncharged offenses in 

the circumstances of this case, because defendant was not convicted of crimes regarding 

 

8 Federal Rules of Evidence, rule 414(a), provides: “In a criminal case in which a 

defendant is accused of child molestation, the court may admit evidence that the 

defendant committed any other child molestation. The evidence may be considered on 

any matter to which it is relevant.” 

9 Defendant merely acknowledges in passing, without any discussion, that the court in 

LeMay was one several courts that have “rejected due process challenges to propensity 

evidence.” 
20 

the prior conduct, and the evidence was highly inflammatory, dissimilar to the charged 

offenses, remote, and marginally probative. We disagree. 

 Under Evidence Code section 1108, the trial court has broad discretion to admit 

evidence of uncharged offenses. (Falsetta, supra, 21 Cal.4th at p. 919.) We review the 

trial court’s determination under an abuse of discretion standard of review. (People v. 

Wesson (2006) 138 Cal.App.4th 959, 969.) 

 In assessing admission of uncharged offenses under Evidence Code section 1108, 

this court identified four factors to consider: (1) whether the uncharged conduct was 

more inflammatory than the charged offenses; (2) the possibility of jury confusion; (3) 

remoteness in time of the uncharged offense; and (4) the amount of time involved in 

introducing and refuting the evidence of uncharged offenses. (People v. Harris (1998) 60 

Cal.App.4th 727, 738-741 (Harris).) In Harris, the defendant, a mental health nurse, was 

charged with sexually abusing two women patients who were vulnerable because of their 

mental health condition. (Id. at p. 730.) This court described the conduct underlying the 

charges as “at worst [the] defendant licked and fondled an incapacitated woman and a 

former sexual partner, both of whom were thereafter on speaking terms with him” and 

involved a breach of trust by a caregiver. (Id. at p. 738.) Evidence of a 23-year-old 

incident involving residential burglary, brutal rape, beating and stabbing of a stranger for 

which defendant was only convicted of residential burglary was admitted under section 

1108. (Id. at pp. 733-735.) This court held that the evidence was improperly admitted, 

because: the evidence of the prior crime was inflammatory “in the extreme” and far more 

inflammatory than the charged offenses (id. at p. 738); the evidence that defendant was 

only convicted of residential burglary and inflicting great bodily injury could have caused 

the jury to conclude the rape was “unrevenged,” thus creating a probability of jury 

confusion (id.); the defendant had led a “blameless life” during the 23 years and the 

incidents were “so totally dissimilar” as to lack “any significant probative value.” (Id. at 

pp. 739-740.) 
21 

 Here, the uncharged offenses were no more inflammatory than the charged 

offenses. To the contrary, the evidence involving the sexual abuse of the charged 

offenses was far more disturbing because it involved ongoing abuse of defendant’s 

natural daughter and two girls for whom he had assumed a a father figure role. 

Defendant contends that the uncharged offenses were “completely dissimilar” for 

the reason that the relationship he had with the victims in the charged offenses was 

different than that he had with the Evidence Code section 1108 victims, acknowledging 

that in the charged offenses, he violated a position of trust and authority over his daughter 

and “quasi-stepdaughters.” In his reply brief, he acknowledges there are some 

similarities, but argues that the similarities do not establish a modus operandi. As our 

high court has recognized, Evidence Code section 1108 conduct need not be similar to be 

admissible. (Loy, supra, 52 Cal.4th at p. 63.) “ ‘[T]he charged and uncharged crimes 

need not be sufficiently similar that evidence of the latter would be admissible under 

Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no 

purpose. It is enough the charged and uncharged offenses are sex offenses as defined in 

section 1108. [Citation.]’ ” (Id.) Thus, while similarity is a factor, it plays a smaller role 

than it does in Evidence Code section 1101, subdivision (b), analysis. (Roberston, supra, 

208 Cal.App.4th at p. 991.) 

Here, the uncharged sexual misconduct was similar. It involved rape, attempted 

rape, and grabbing the breasts and vaginas of four young girls, both over and under 

clothing. The current offenses involved rape and fondling the breasts and vagina of three 

young girls. For six out of the seven girls, defendant or his brother or uncle had a 

relationship with the mother that allowed defendant access to prey upon the girls 

opportunistically, and he did so. All but one of the crimes was committed inside or just 

outside a family home. Many of the incidents were perpetrated on a bed inside of the 

home. Defendant exposed at least two of the victims (Jane Doe 3 and Jane Doe 5) to 
22 

pornography on a computer. The similarities here enhanced the probative value of the 

Evidence Code section 1108 evidence. 

Defendant points out that the uncharged offenses occurred when defendant was 

between ages 14 and 22. Although defendant says his youth, while not an excuse, puts 

things “in a different light,” defendant’s relative youth at the time of the first offense 

actually demonstrates a deep seeded propensity for such conduct with young girls of 

relatively the same age -- girls that are substantially younger than he -- that began when 

he was also young and persisted into adulthood. 

This case is thus unlike Harris, upon which defendant relies heavily. In Harris, 

this court charged that the crimes were “of a significantly different nature and quality 

than the violent and perverse attack on a stranger that was described to the jury” as 

uncharged misconduct. (Harris, supra, 60 Cal.App.4th at p. 738.) Moreover, unlike in 

Harris, we see no indication that the uncharged offenses here created any danger of 

confusing the jury. 

 Defendant argues the uncharged offenses were remote, with almost 40 years 

between some of the uncharged and charged offenses. No specific time limits have been 

established for determining when an uncharged offense is so remote as to be 

inadmissible. (Robertson, supra, 208 Cal.App.4th at. p. 992.) “In theory, a substantial 

gap between the prior offenses and the charged offenses means that it is less likely that 

the defendant had the propensity to commit the charged offenses. However,...significant 

similarities between the prior and the charged offenses may ‘balance[] out the 

remoteness.’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 285.) Here, defendant’s 

focus on 40 years is unavailing, because he did not lead a blameless life for 40 years or 

even 23 years, as the defendant in Harris. Rather, as we have noted the evidence 

demonstrates deep seeded propensity for sexual conduct with young girls of relatively the 

same age who are substantially younger than him and for whom he had access to because 
23 

of a family relation.10 His misconduct began around 1974, resumed against the same 

victim (Jane Doe 4) around 1979 and continued for a few years, was redirected to Jane 

Doe 5 in 1980, then to Jane Doe 6 in 1982, and Jane Doe 7 in 2001. In the meantime, 

between the incidents involving Jane Doe 6 and Jane Doe 7, defendant molested his own 

daughter, Jane Doe 3 (charged offenses) beginning around 1998 and continuing for two 

years. The most recent incidents were the charged offenses against Jane Doe 1 and Jane 

Doe 2 between 2006 and 2009. Thus, in the 38-year span, the longest period of inactivity 

based on the evidence was between 1982 and 1998 -- 16 years. 

In People v. Waples (2000) 79 Cal.App.4th 1389, the court held uncharged sexual 

offenses involving the same victim occurring between 15 and 22 years before trial were 

not too remote, in part because the similarities balanced out the remoteness. (Id. at 

p. 1395.) In Branch, supra, 91 Cal.App.4th 274, the court held a 30-year gap between 

defendant’s molestation of his 12-year-old stepdaughter (the uncharged offenses) and his 

molestation of his 12-year-old step-great-granddaughter (the charged offenses) was not 

too large a gap because the similarities balanced out the remoteness. (Id. at p. 285.) In 

Robertson, the court held that similar prior kidnapping and sexual misconduct occurring 

34 years prior to the charged kidnapping and sexual assault was admissible under 

Evidence Code section 1108. Here, the similarities and the protracted pattern of sexual 

abuse involving multiple victims more than balanced out any remoteness. Indeed, the 

evidence was highly probative, especially in light of defendant’s attempt to paint the 

instant victims as liars. 

 

10 We note that the circumstances described by Jane Doe 5 -- defendant’s male 

acquaintances bringing defendant to the house where she was and ignoring her cries for 

help -- also suggest defendant took advantage of access to a victim, even though she was 

not related to defendant. Moreover, there were similarities to the charged offenses. Part 

of the incident occurred on a bed in a bedroom as did some of the offenses involving the 

charged victims, and defendant grabbed Jane Doe 5’s breasts and vagina as he did with 

the charged victims. 
24 

Defendant points out that the evidence reflected no convictions for his prior sexual 

misconduct and argues this would have led jurors to believe he had escaped punishment 

for those earlier acts. Defendant again relies on Harris, where the defendant was allowed 

to plead to non-sexual assault offenses, and this court observed that the jury the jury 

could have concluded that defendant “escaped appropriate rape charges and was merely 

convicted of burglary, leaving the rape victim unrevenged,” thus increasing the likelihood 

the jury might seek to punish defendant for the uncharged offense by convicting him of 

the charged offenses. (Harris, supra, 60 Cal.App.4th at p. 738.) We agree that the lack 

of evidence of prior convictions is a factor that cuts against admissibility of Evidence 

Code section 1108 evidence (People v. Ewolt (1994) 7 Cal.4th 380, 405), but it is just one 

factor, and it is perhaps more important in cases where the prior conduct is more 

inflammatory compared to the charged offenses, as in Harris. As we have noted, that is 

not the case here. Moreover, at the beginning of the trial and again at the end of the trial, 

the court instructed the jury to not consider punishment in deciding the verdict, and we 

presume the jury followed these instructions. (People v. Thomas (2011) 51 Cal.4th 449, 

487.) On balance, the lack of prior convictions does not tip the scales in favor of 

precluding the highly probative Evidence Code section 1108 evidence in this case. 

 We conclude the trial court did not abuse its discretion in allowing the evidence of 

uncharged offenses. We therefore need not address the arguments about harmless error. 

II. One Strike Sentencing 

 Defendant argues that application of the one strike sentencing statute (§ 667.61, 

subds. (b), (c), (e) [15 years to life for sex offenses against more than one victim]), to the 

convictions involving Jane Doe 3, defendant’s daughter, violated the ex post facto 

constitutional prohibitions (U.S. Const., art. I, § 10 [“No state shall...pass any...ex post 

facto law.”]; Cal. Const., art. 1, § 9 [“A[n]...ex post facto law...may not be passed.”). 

He argues there was no proof that any of the three counts involving Jane Doe 3, which 

were alleged to have occurred between August 1, 1994, and August 31, 2001, were 
25 

committed after the effective date of the statute, November 30, 1994. Defendant argues 

the issue is cognizable on appeal despite his failure to object in the trial court. 

Alternatively, defendant argues his trial counsel’s failure to object constituted ineffective 

assistance of counsel. 

We conclude that defendant’s contention lacks any merit and the allegation that 

trial counsel provided constitutionally ineffective assistance for failing to object on ex 

post facto grounds is completely unwarranted. As we discuss in more detail post, Jane 

Doe 3 was only one year old when the One Strike law took effect, and the evidence 

established beyond a reasonable doubt that the molestations took place after the effective 

date of the statute. 

 Defendant relies heavily on People v. Hiscox (2006) 136 Cal.App.4th 253, 259. 

The Hiscox court held that ex post facto principles preclude sentencing under section 

667.61 for sex offenses committed before the November 30, 1994, effective date of the 

statute, because the sentences prescribed by section 667.61 greatly exceed the 

determinate sentences previously available for sex offenses. (Hiscox, supra, 136 

Cal.App.4th at p. 257.) The court also held, “it is the prosecution’s responsibility to 

prove to the jury that the charged offenses occurred on or after the effective date of the 

statute providing for the defendant’s punishment. When the evidence at trial does not 

establish that fact, the defendant is entitled to be sentenced under the formerly applicable 

statutes even if he raised no objection in the trial court.” (Id. at p. 256.) The Hiscox

court also held that the failure to register an ex post facto objection in the trial court does 

not forfeit the issue on appeal. (Id. at p. 259.) 

 In Hiscox, the pleading alleged 11 counts of lewd and lascivious conduct with 

three child victims, committed between 1992 and 1996, and the jury was not instructed to 

make findings whether any offense was committed after November 30, 1994. (Hiscox,

supra, 136 Cal.App.4th at pp. 257-258.) The evidence showed that the mother and the 

three victims lived in different residences between 1992 and 1996, but none of the 
26 

witnesses were certain about when the move between the residents occurred. 

Accordingly, the court reasoned that the testimony regarding where the offenses occurred 

did not show whether the offenses happened before or after section 667.61 took effect. 

The one charge the People asserted “certainly” occurred after the effective date of section 

667.61 was purportedly perpetrated against the victim when he was in the first grade, but 

no testimony established how old the victim was when he was in the first grade. 

Furthermore, the victim was not certain. He testified that the molestation occurred 

“ ‘probably about the first grade.’ ” (Id. at p. 261) The court concluded, “[o]n this state 

of the evidence, it simply cannot be said the prosecutor succeeded in establishing that any 

particular offense was committed when section 667.61 was in effect.” 

 Here, although the pleading alleged the offenses occurred between August 1, 

1994, and August 31, 2001, the testimony narrowed that time frame to the two years 

preceding the 2001 date. Jane Doe 3 who was born November 18, 1993, was only one 

year old when the One Strike law took effect in November of 1994. The evidence 

showed that when she was about nine months old, the family moved from Montana, 

where Jane Doe 3 was born, to California where they lived on the maternal grandparents’ 

ranch on Jackson Highway and then in a trailer for a short time. Defendant and his exwife had another child, a son, born July 4, 1999. The ex-wife testified the family then 

moved into the apartment on Stockton Boulevard in Sacramento weeks after the son was 

born, when Jane Doe 3 was about five and a half years old. Jane Doe 3 specifically 

testified that all the molestations she remembered occurred when they were living in that 

apartment. That was the last residence shared by the victim and defendant before 

defendant’s ex-wife separated from him, and he left, no longer having access to Jane 

Doe 3. Though there was some discrepancy in that Jane Doe 3 remembered having her 

own bedroom while others testified the apartment had only one bedroom shared by the 

whole family, that minor detail is inconsequential in light of the totality of evidence. 
27 

 The evidence leaves no doubt that all three counts of defendant’s sexual abuse of 

Jane Doe 3 occurred after the one strike sentencing statute, section 667.61, took effect in 

November 1994, when Jane Doe 3 was only one year old. Although the prosecutor in 

closing argument to the jury said defendant molested Jane Doe 3 beginning in 1994, the 

prosecutor’s remarks were not evidence, as the jury was instructed. And defense counsel 

in closing argument to the jury acknowledged that Jane Doe 3 was claiming things that 

happened to her when she was four or five years old -- a statement consistent with Jane 

Doe 3’s own testimony. Indeed, defendant’s appellate brief, in arguing improper 

admission of uncharged offenses, stated, “The charged offenses involving Jane Doe 3 

allegedly occurred between 1994 and 2001. [Citation.] However Jane Doe 3 was born 

November 18, 1993.... It was unclear when the earliest molestations occurred.... 

However, it is reasonable that some would have been closer to the late 1990’s, based on 

her description of what she recalled. This conclusion is a reasonable inference based on 

her testimony describing events with [defendant] and her age.” 

 Here, there was no evidence of any act before November 30, 1994, at which point 

the victim was only one year old. There is no reasonable doubt that all three counts 

occurred after November 30, 1994. (Hiscox, supra, 136 Cal.App.4th at p. 261 [evidence 

is insufficient to establish dates for purposes of application of the ex post facto rule 

unless the evidence leaves no reasonable doubt that the underlying charges pertained to 

events occurring on or after November 30, 1994].) 

 Defendant’s sentence did not violate the ex post facto prohibitions and defense 

counsel did not provide constitutionally ineffective assistance of counsel. 

III. Presentence Credits 

 Defendant’s opening brief argues the trial court shortchanged him on presentence 

credits under sections 4019 and 2933.1. He notes the trial court verbally awarded him a 

total of 998 days of presentence credit (868 actual days plus 130 conduct credit), but the 

abstract of judgment says only 939 days total. Defendant’s opening brief says both are 
28 

wrong, and the actual number should be a total of 1,000 days (870 actual days from his 

February 9, 2009, arrest, to his June 27, 2011, sentencing, plus 130 conduct credit under 

section 2933.1). The Attorney General’s brief agrees math errors occurred due to 

repeated continuance of the sentencing date, but the Attorney General says the correct 

amount is a total of 999 days (869 plus 130). Defendant’s reply brief acknowledges the 

trial court on January 13, 2012, issued a corrected abstract of judgment at his request, 

showing a total of 998 days rather than the 1,000 days he requested. Defendant’s reply 

brief says he checked the math and came up with yet another total -- 1,007 days. 

Defendant does not explain why his earlier calculation was incorrect. We did the math 

and came up with a total of 1,000 days. 

 We order modification of the abstract of judgment to show a total of 1,000 days 

presentence credits (870 actual days plus 130 days of conduct credit). 

IV. Section 1465.8 Fees 

 Defendant argued in his opening brief that the trial court overcharged him for 

section 1465.8 court operations assessment fees, but his reply brief acknowledges the 

issue has become moot because the trial court, upon defendant’s informal request, issued 

a corrected abstract of judgment correcting the amount to $440. We therefore need not 

address the matter. 
29 

DISPOSITION 

 The judgment is modified to show a total of 1,000 days presentence credits. The 

trial court shall prepare an amended abstract of judgment and forward a copy to the 

California Department of Corrections and Rehabilitation. The judgment is otherwise 

affirmed. 

 MURRAY , J. 

We concur: 

 ROBIE , Acting P. J. 

 HOCH , J.