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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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,                                                                   2d Crim. No. B238060
                                                                            (Super. Ct. No. F461608)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

ROBERT PALOMO,

     Defendant and Appellant.


                   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.
                           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

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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.

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(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.
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              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

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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.
                                                   6
(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


                                               7
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."

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              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.


                                                9
                                  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.




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