Filed 11/25/15 P. v. Flores CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049760

         v.                                                            (Super. Ct. No. 12NF1891)

CARMELO SANCHEZ FLORES,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance P.
Jensen, Judge. Affirmed.
                   Salvatore Coco and Sandra J. Applebaum for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Anthony Da
Silva and Martin E. Doyle, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Carmelo Sanchez Flores of three counts
                                                                                 1
of lewd acts on children under 14 years of age. (Pen. Code, § 288, subd. (a).) The jury
found true the allegations (1) as to count 1, he engaged in substantial sexual conduct with
a child under 14 years of age (§ 1203.066, subd. (a)(8)); (2) as to counts 1 and 3,
defendant was convicted of the lewd act offense against more than one victim (§ 667.61,
                    2
subds. (b) & (e)(5) ; and (3) as to count 2, the statute of limitations was tolled (§ 803,
subd. (f)(l )). The court sentenced defendant to an aggregate prison term of 30 years to
life on counts 1 and 3, plus a consecutive determinate six years in prison on count 2.
              Defendant contends (1) the court abused its discretion by admitting
evidence of uncharged conduct pursuant to Evidence Code section 1108; (2) the court
improperly instructed the jury with a modified version of CALCRIM No. 1191 allowing
the jury to consider the charged and uncharged conduct as propensity evidence; (3) the
statute of limitations on count 2 was not tolled and the jury was improperly instructed on
tolling; (4) the prosecutor committed misconduct; and (5) the errors were cumulatively
prejudicial. The People contend the abstract of judgment must be corrected. We agree
with the People’s contention. In all other respects, we affirm the judgment.


                                           FACTS


              In accordance with the usual standard of review, we recite the evidence in
the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
We separately recite the evidence in support of each count.


1
              All statutory references are to the Penal Code unless otherwise stated.
2
              Section 667.61, subdivision (e)(5) has subsequently been renumbered as
subdivision (e)(4). (Stats. 2010, ch. 219, § 16.)


                                              2
Count 1: K.C.
              At the time of defendant’s trial, K.C. was 16 years old. Defendant is K.C.’s
father’s second cousin. K.C.’s father considered defendant to be like a brother. K.C. saw
defendant at family parties. She also saw him when defendant visited her family’s house
or when they visited his house.
              When K.C. was in the second grade, she went into the restroom during a
family party and closed the door. She was sitting on the toilet when defendant came in.
He said, “Oh, don’t worry. Just keep on doing your business.” He went into the shower
behind the shower curtain.
              K.C. got up to wash her hands. Defendant came up behind her, put his
arms on the sink, and asked K.C. whether she wanted to show him her underwear. She
said, “No.” “He kept persisting or asking her to show him.” He asked what color “they
were.” Then he said, “Okay,” and opened the door. They walked out. K.C. felt
“confused” and “weird,” and did not tell her parents what had happened.
              About one year later, K.C. and defendant were at a different family party,
hosted by an uncle. K.C. used the restroom after locking the restroom door. She finished
and got up to wash her hands. Defendant came in. He had her bend over the toilet with
her hands on the toilet seat. He was behind her. Her legs were spread apart. Defendant
put his fingers in and out of her vagina for less than one minute, while asking her “if it
felt good.” K.C. said, “No.” He stopped, washed his hands, and went out. K.C. “went
out and . . . sat on the couch and just sat there.” She did not tell her parents because she
felt scared, uncomfortable, weird, and confused.
              Defendant came over to K.C.’s house one day in October, when K.C.’s
little brother was in a Spiderman costume for Halloween, and everyone was looking for
his mask. K.C.’s father was not there. Defendant drove the children to a school carnival
with K.C. in the front passenger seat and her brother in the back seat. Defendant asked
K.C. to keep what had happened “a secret between us.”


                                              3
              Later, every time she saw defendant, she would remember what happened.
She tried her best to avoid him. Around seventh or eighth grade, she started thinking
about it more.
              When K.C. was in the eighth grade, she received a journal as a Christmas
gift. In the journal — which she kept private — she wrote about boys, her family, what
she did with her friends, and anything she wanted to remember. In 2011, K.C. wrote in
the journal she was “a statistic of girls who were sexually abused or molested before they
turned 10 years old.” In another entry, she wrote, “Dear Carmelo.” In another section
she wrote, “Does that feel good?” “But it didn’t feel good.” She drew a picture of the
first incident, portraying defendant behind her with his arms on the sink. She wrote that
her underwear “were pink with white princess crowns on them.” She never wore the
princess crown underwear again.
              In 2012, K.C.’s mother discovered the journal and read the entries about
defendant. K.C.’s parents asked her if the entries were true. K.C. “started breaking
down.” She was crying a lot and was “really overwhelmed.” She told her mother what
had happened. Previously, K.C. had been afraid to tell her parents because she “knew
how close [her] dad was with [defendant], how close [her] family was with him, how
much they respected him and [she] didn’t want to ruin that between them.” K.C.’s
parents contacted the police.


Count 2: M.
              At the time of defendant’s trial, M. was 34 years old. When M. was 13
years old, she went to her friend’s 14th birthday party at her friend’s apartment. M.’s
friend is defendant’s second cousin. Other cousins were at the birthday party. M.’s
friend introduced defendant to M.
              In the apartment’s carport area, M., defendant, and another female cousin
talked. The female cousin departed, leaving defendant and M. alone. Defendant flirted

                                             4
with M. He told her he was 27, twice her age. Defendant began to grope and kiss M. He
kissed her breasts through her shirt. He put his fingers in M.’s vagina, forcing the top
button of her jeans to come unbuttoned.
              M.’s friend saw M. walk from the side of the apartment building with
defendant trailing behind her. M. was wiping her mouth, as though there was some “kind
of slobber.” M. told her friend what had happened.
              A year later, M. saw defendant at her friend’s birthday party. After the
birthday party, M. lost touch with her friend. Over 17 years later, M.’s friend contacted
her via Facebook in June 2012 and gave M. instructions to contact a detective due to an
incident concerning defendant and the friend’s niece.


Count 3: N.
              At the time of defendant’s trial, N. was 16 years old. Defendant is N.’s
mother’s cousin. When N. was growing up, prior to the charged incident, she would see
defendant at parties and get-togethers, and got along well with him.
              When N. was 7 or 8 years old, her family lived at her grandparents’ house.
One day, defendant, his mother, and his brother came over to visit. Defendant, N., and
N.’s younger brother went to the downstairs living room to look at the dogs. N.’s brother
was sitting on a couch, paying attention to the dogs.
              N. and defendant were behind the couch. Defendant was kneeling on one
knee and “sat [N.] on his lap.” N. was wearing light blue skorts (combination skirt with
shorts) adorned with Tinkerbell on the side that went to her mid-thigh.
              Defendant rubbed N.’s knee. He started going higher and began rubbing
the inside of N.’s leg under her skirt but over her shorts. N. felt uncomfortable, so she
“got up like if nothing happened, everything was all right, and just talked to him about
the dogs.”



                                             5
              That night, defendant went into N.’s bedroom as she was going to sleep.
He turned on the light and closed the door. He sat on N.’s bed and they “were just
talking.” She had changed into black sweats. He put his hand under the blanket and
started rubbing her leg over her sweats. She pushed his hand away more than once, but
he kept putting his hand back.
              N. felt scared, so she said she was going to get a glass of water and got out
of the bed. Defendant walked out too. N. went to her mother’s room because she was
scared. She was crying and told her mother she was scared to sleep by herself. She did
not tell her mother about what had happened because she felt her mother “wouldn’t think
it was important or . . . that [defendant] meant it in the wrong way.” N. “felt like it
wasn’t right,” but she “just didn’t want to say anything.” She told a female cousin about
what had happened. The cousin “would stay with [N.] all the time . . . at family parties.”
              In the summer of 2012, N.’s aunt, R.P., phoned N. and told her that an
incident had happened in the family. R.P. is N.’s mother’s sister. R.P. asked whether
anything had happened between N. and defendant. N. told R.P. that defendant had
caressed her leg when she was a little girl and that nothing else had ever happened.
              N.’s father took her to the police. N.’s mother, on the other hand, did not
support N. talking about what had happened.


Uncharged Conduct: R.A.
              At the time of defendant’s trial, R.A. was 27 years old. R.A.’s high school
boyfriend (and, briefly, her husband) was defendant’s cousin. R.A. had been
emancipated at age 16. R.A. got to know defendant very well.
              When R.A. was 17 years old, she was driving and saw defendant driving to
her right and telling her to pull over. She pulled into a McDonald’s restaurant parking
lot. Defendant kissed R.A.’s lips, which was his “thing — he would kiss everyone on the
lips.” They chatted for a few minutes. Defendant grabbed R.A. by the face, tried to kiss

                                              6
her, and put his arms around her. He stuck his tongue in her mouth. R.A. felt very
uncomfortable. R.A. jumped in her car, locked the doors, and drove off as fast as she
could.


Defense Case
               Defendant testified in his own defense and denied all of the events as
recounted by the victims of the charged offenses as well as R.A.’s testimony. He also
called witnesses to attest to his good character. Finally, defendant called a psychologist
to testify on his behalf.


                                       DISCUSSION

I. The Court Properly Admitted Evidence of Defendant’s Uncharged Conduct with R.A.
   and Properly Instructed the Jury on Such Evidence
               Defendant argues the court should have excluded evidence of his encounter
with R.A. He further argues that, even if the evidence was properly admitted, the court
                                                                                        3
erroneously instructed the jury with modified CALCRIM Nos. 1191, 1122, and 370.


               A. Admission of Uncharged Conduct Under Evidence Code Section 1108
               Defendant argues the R.A. incident was dissimilar to his crimes against
K.C. and N., because R.A. was unrelated to defendant, she was older than the other

3
               Defendant perfunctorily argues the court erred by failing sua sponte to give
a unanimity instruction, since R.A. testified defendant would customarily kiss her and
other people on the lips as a form of greeting. Defendant has waived this contention by
failing to include reasoned argument on a court’s sua sponte duty to give a unanimity
instruction with respect to uncharged conduct. (People v. Stanley (1995) 10 Cal.4th 764,
793; Cal. Rules of Court, rule 8.204(a)(1)(B).) But without extended analysis, we note
that the asserted sua sponte duty to give a unanimity instruction with respect to uncharged
conduct was rejected by the California Supreme Court in People v. Ghant (1987) 3
Cal.3d 739, 773-774.

                                             7
victims, the age difference between her and defendant was greater, the incident occurred
in a public place, and he did not touch R.A.’s vagina or ask to see her underwear. He
also claims the evidence was cumulative and remote in time.
              At the Evidence Code section 402 hearing, the People requested the
admission of evidence of two different incidents concerning R.A. One was the encounter
where defendant and R.A. pulled over after seeing each other driving. The second
involved multiple incidents at family functions where defendant would greet R.A. with
tight hugs that made her uncomfortable, and kissed or touched her near her lips and
breasts.
              Defense counsel argued the driving incident was too remote and lacked
certainty, its probative value was outweighed by the consumption of time, and it was
unduly prejudicial. Defense counsel argued the second group of incidents was more
prejudicial than probative.
              The court found the driving incident was admissible under Evidence Code
section 1108 and was relevant and probative as to intent. Under Evidence Code
section 352, the court found the driving incident was more probative than prejudicial and
would not unduly consume time or mislead the jury. The court stated it had considered
the factors and analysis under People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).
              The court found the second group of incidents to be vague and not
necessarily relevant or similar to the charged conduct, as they appeared to be “overly
affectionate, uncomfortable situations born of family functions.” The court therefore
excluded evidence of the second group of incidents.
              Evidence Code section “1108 is an exception to the general prohibition
against admitting character evidence to prove criminal disposition or propensity.”
(People v. Jandres (2014) 226 Cal.App.4th 340, 352 (Jandres)). Evidence of the
defendant’s commission of an uncharged “sexual offense” is admissible under Evidence
Code section 1108 if the evidence is admissible under Evidence Code section 352. (Evid.

                                            8
Code, § 1108, subd. (a).) Thus, the trial court’s inquiry under Evidence Code
section 1108 is two-fold: First, does the uncharged conduct come within Evidence Code
section 1108’s definition of “‘sexual offense’”? (Jandres, at p. 353.) Second, should the
evidence be excluded under Evidence Code section 352? (Jandres, at p. 353.)
              As to the first inquiry, the statute defines “‘[s]exual offense’” to include
annoying or molesting a child under 18 years of age in violation of section 647.6. (Evid.
Code, § 1108, subd. (d)(1)(A).) A trial court has discretion to exclude evidence that the
defendant committed a statutorily-enumerated sex offense “‘only if the “showing of
preliminary facts is too weak to support a favorable determination by the jury.”’”
(Jandres, supra, 226 Cal.App.4th at p. 353.)
              Defendant argues no credible evidence showed R.A. was younger than 18
years of age at the time of the driving incident. To the extent defendant challenges the
court’s conclusion at the Evidence Code section 402 hearing that the People’s proffered
evidence could support a jury finding he violated section 647.6, his challenge lacks merit.
At the hearing, the prosecutor argued R.A. was 17 years old when the incident occurred;
defense counsel stated R.A. was at least 17 years of age at that time. To the extent
defendant challenges the sufficiency of the evidence to support the jury’s finding that
R.A. was under 18 years of age, his argument attempts to reweigh the evidence and
invade the province of the fact finder. The jury was entitled to credit R.A.’s testimony
that she was 17 years of age at the time of the incident.
              As to the second inquiry, Evidence Code section 352 affords a court the
discretion to “exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Ibid.) In this context, “prejudice” means evidence which tends to evoke an emotional
bias against the defendant and which has little effect on the issues; “‘“prejudicial” is not
synonymous with “damaging.”’” (People v. Bolin (1998) 18 Cal.4th 297, 320.) “[T]he

                                               9
trial court enjoys broad discretion in assessing whether the probative value of particular
evidence is outweighed by concerns of undue prejudice, confusion or consumption of
time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124). We will disturb that ruling
only if “‘the court exercised its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.’” (Ibid.)
              Here, the court did not abuse its discretion under Evidence Code
section 352. It considered the Falsetta factors for determining undue prejudice, i.e., the
uncharged offense’s “nature, relevance, and possible remoteness, the degree of certainty
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.” (Falsetta, supra, 21 Cal.4th at p.
917.) The court found the evidence of R.A.’s encounter with defendant in the parking lot
was more probative than prejudicial because it showed defendant’s intent was sexual and
because R.A.’s testimony would not unduly consume time or mislead the jury. In
contrast, the court found defendant’s other conduct with R.A. was vague and dissimilar to
the charged offenses, and excluded the evidence. The court’s admission of the
challenged evidence was neither arbitrary, capricious, nor absurd.
              Defendant’s argument the R.A. incident was dissimilar to the charged
offenses is unpersuasive. Both R.A. and M. had no family relationship to defendant.
                                                                                     4
Defendant was about 17 years older than R.A., and about 11 years older than M. The
R.A. incident happened in a parking lot, the M. incident in a carport area. The R.A.
incident occurred around 2003 or early 2004, about the same time as the K.C. and N.
4
              Although M. testified defendant said he was 27 years old when she was 13
years of age, he is actually about 10 and a half years older than M.

                                              10
incidents. Given these similarities, defendant’s reliance on Jandres, supra, 226
Cal.App.4th 340 is unavailing. In Jandres, “the many differences between the two
offenses [included] the circumstances (daytime attempted burglary in one case, possible
stalking and attack at night in the other); the ages of the victims (11 and 18); and the
nature of the conduct (inappropriate touching of the mouth in one case, rape in the
other) . . . .” (Id. at p. 356.)

                B. Jury Instructions on Use of Other Crimes as Propensity Evidence, Child
                   Annoyance, and Motive


                Defendant contends that even if the court properly admitted evidence of the
R.A. incident under Evidence Code section 1108, the court erred by failing to instruct the
jury the People bore the burden of proving (1) he committed child annoyance against
                                                                                             5
R.A., and (2) he did not actually and reasonably believe she was at least 18 years of age.
                The court instructed the jury with the following modified version of
CALCRIM No. 1191 on the use of other crimes as propensity evidence: “The People
presented evidence that the defendant allegedly committed the crimes of lewd act upon a
child under 14 years of age, and child annoyance. Those crimes are defined for you in
these instructions. [¶] If you decide that the defendant committed one or more of these
offenses beyond a reasonable doubt, you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit sexual offenses, and
based on that decision, also conclude that the defendant was likely to commit and did
commit any of the other charged offenses. [¶] If you conclude that the defendant
committed one or more of these offenses, that conclusion is only one factor to consider


5
               In his reply brief, defendant argues for the first time his trial counsel
rendered ineffective assistance of counsel by failing to request that CALCRIM No. 1122
be given in its entirety. We do not address issues first raised in the reply brief. (Provost
v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295.)

                                             11
along with all the other evidence. It is not sufficient by itself to prove that the defendant
is guilty of any of the other charged offenses. The People must still prove each element
of every charge and allegation beyond a reasonable doubt.”
              Over defense counsel’s initial objection, this modified version of
CALCRIM No. 1191 given by the court omitted the second and third paragraphs of the
pattern instruction. Those omitted paragraphs would have provided: “You may consider
this evidence only if the People have proved by a preponderance of the evidence that the
defendant in fact committed the uncharged offenses. Proof by a preponderance of the
evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more likely than not
that the fact is true. [¶] If the People have not met this burden of proof, you must
disregard this evidence entirely.” (CALCRIM No. 1191.)
              The court instructed the jury with the following modified version of
CALCRIM No. 1122 on the elements of child annoyance: “You have heard testimony
from witness [R.A.] regarding an uncharged offense of annoying a child, in violation of
Penal Code section 647.6. [¶] To prove the defendant guilty of this crime, the People
must prove that: [¶] One, the defendant engaged in conduct directed at a child; [¶]
Two, a normal person, without hesitation, would have been disturbed, irritated, offended,
or injured by the defendant’s conduct; [¶] Three, the defendant’s conduct was motivated
by an unnatural or abnormal sexual interest in the child; [¶] and four, the child was under
the age of 18 years at the time of the conduct. [¶] It is not necessary that the child
actually be irritated or disturbed. It is also not necessary that the child actually be
touched. It is not a defense that the child may have consented to the act.”
              This modified version of CALCRIM No. 1122 given by the court omitted
the following optional paragraphs of the pattern instruction: “[Under the law, a person
becomes one year older as soon as the first minute of his or her birthday has begun.] [¶]
<Defense: Good Faith Belief Over 18> [¶] [The defendant is not guilty of this crime if

                                              12
(he/she) actually and reasonably believed that the child was at least 18 years of age. The
People have the burden of proving beyond a reasonable doubt that the defendant did not
actually and reasonably believe the child was at least 18 years of age. If the People have
not met this burden, you must find the defendant not guilty of this crime.]”
              A court bears a sua sponte duty to instruct the jury on the essential elements
of an offense (People v. Flood (1998) 18 Cal.4th 470, 480-481), and “‘on the general
principles of law governing the case’” (People v. Michaels (2002) 28 Cal.4th 486, 529),
i.e., “‘“those principles of law commonly or closely and openly connected with the facts
of the case before the court”’” (id. at p. 530). A court also has a sua sponte duty to
instruct on a defense if the defendant appears to rely on the defense, or if substantial
evidence supports the defense and it is not inconsistent with the defendant’s theory of the
case. (People v. Barton (1995) 12 Cal.4th 186, 195.) “‘Generally, a party may not
complain on appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate clarifying or
amplifying language.’” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) “We
review defendant’s claims of instructional error de novo.” (People v. Johnson (2009) 180
Cal.App.4th 702, 707.)
              The court did not err by giving CALCRIM Nos. 1191 and 1122 with the
omissions of which defendant complains. As modified and given here, CALCRIM No.
1191 instructed the jury that if it decided defendant “committed one or more of these
offenses beyond a reasonable doubt,” it could consider such offense(s) as propensity
evidence. Thus, the modified version actually raised the standard of proof as to
defendant’s uncharged offense concerning R.A., from preponderance of the evidence to
beyond a reasonable doubt. “[T]here was no risk the jury would apply an impermissibly
low standard of proof.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1168 (Villatoro).)
              As to CALCRIM No. 1122, defense counsel did not request inclusion of the
omitted paragraphs. Nor did the court err by not including them sua sponte. As the court

                                             13
stated, “We don’t have anything about a good faith belief.” The defense theory of the
case was that defendant did not kiss R.A. as she described. This theory was inconsistent
with an alternative defense theory that, even if he did commit the act, he believed she was
                6
18 years old.
                    Finally, defendant contends the court erred by instructing the jury the
People were not required to prove he had a motive to commit any of the charged crimes.
(CALCRIM No. 370.) He argues the instruction conflicted with CALCRIM No. 1122’s
requirement that a defendant’s conduct be motivated by an unnatural or abnormal sexual
interest in the child in order to constitute child annoyance. Defendant cannot challenge
the giving of the motive instruction, however, since he requested it below. (People v.
Lucero (2000) 23 Cal.4th 692, 723.) Furthermore, the motive instruction expressly refers
to “charged” crimes. The jury was instructed to pay careful attention to all the
instructions and consider them together. Jurors are presumed to understand, correlate,
and follow the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)


II. The Court Properly Instructed the Jury With CALCRIM No. 1191 as to the Three
    Charged Crimes and Gave the Appropriate Unanimity Instruction
                    Defendant argues evidence of the charged crimes for use as propensity
evidence under Evidence Code section 1108 should not have been permitted. Defendant
further argues, even if the evidence was properly permitted to be used as propensity
evidence, the court failed to conduct an Evidence Code section 352 analysis before
instructing the jury with the modified version of CALCRIM No. 1191 quoted above.




6
             In his reply brief, defendant asserts his counsel argued R.A. was actually 18
years old. His cited reporter’s transcript pages, however, reveal only that defense counsel
argued R.A. could have been 17, 18, or even 19 years old.


                                                  14
With respect to K.C. and M., defendant claims the court gave an incomplete unanimity
               7
instruction.
                   In Villatoro, supra, 54 Cal.4th at pages 1164-1165, our Supreme Court held
Evidence Code section 1108 permits the use of charged and uncharged sex offenses as
propensity evidence in sex offense cases.
                   Although the judge must consider Evidence Code section 352 (Villatoro,
supra, 54 Cal.4th at p. 1163), he need not “‘expressly weigh prejudice against probative
value — or even expressly state that he has done so [citation].’” (People v. Padilla
(1995) 11 Cal.4th 891, 924, disapproved on another ground in People v. Hill (1998) 17
Cal.4th 800, 823, fn. 1.) Rather, a reviewing court can “infer an implicit weighing by the
trial court on the basis of record indications well short of an express statement.” (Padilla,
at p. 924.) For example, based on “argument of counsel or comments by the trial court,
or both, touching on the issues of prejudice and probative value . . . , we might infer that
the court was aware of the Evidence Code section 352 issue and thus of its duty to weigh
probative value against prejudice.” (Ibid.) In Villatoro, the trial court stated to the
parties, “‘[CALCRIM No.] 1191, for the record, I’ve given you both a copy based on the
instruction given in [People v. Wilson (2008) 166 Cal.App.4th 1034].” (Villatoro, at p.
1168.) Based on the “‘trial court’s express reliance on a key case in this area, considered
in light of the entire record,’” our Supreme Court inferred that “the trial court implicitly
conducted [an Evidence Code] section 352 analysis.” (Ibid.)
                   Here, based on the court’s express Evidence Code section 352 weighing of
probative value versus prejudice with respect to the R.A. uncharged conduct, the court’s

7
               In his reply brief, defendant argues for the first time his trial counsel
rendered ineffective assistance of counsel by failing to ask the court to conduct an
Evidence Code section 352 balancing prior to allowing each charged act to be used as
propensity evidence for the other charged conduct. We do not address issues first raised
in the reply brief. (Provost v. Regents of University of California, supra, 201
Cal.App.4th at p. 1295.)

                                                15
reference to the Falsetta factors, and the court’s lengthy discussion of CALCRIM No.
1191 (which demonstrated the court’s familiarity with the instruction), we infer the
“court had in mind the appropriate analytic framework for passing on the admissibility of
the evidence, that the court was therefore aware of the need to weigh the evidence under
section 352, and thus that it must have done so” with respect to the charged conduct.
(Villatoro, supra, 54 Cal.4th at p. 1183.)
              Finally, defendant notes there was evidence defendant touched K.C. on two
separate dates and touched M. on the same date in more than one way. Defendant
contends the court erred by omitting the following optional last paragraph of CALCRIM
No. 3502, a unanimity instruction: “[Evidence that the defendant may have committed
the alleged offense (on another day/ [or] in another manner) is not sufficient for you to
find (him/her) guilty of the offense charged.]” This optional paragraph was unnecessary,
however, given the court’s clear unanimity instructions to the jury. The court instructed
the jury with CALCRIM Nos. 3502 and 3500 as follows: “The defendant is charged with
lewd act upon a child under 14 in counts 1 and 2. [¶] The People have presented
evidence of more than one such act. To prove the defendant committed these offenses,
you must not find the defendant guilty unless you all agree that the People have proved
that the defendant committed at least one act of touching [K.C.’s] vaginal area for count 1
and [M.’s] vaginal area for count 2 and you all agree on which act he committed for each
count.” (CALCRIM No. 3502.) “The defendant is charged . . . with lewd act upon a
child under 14 in count 3 on or about and between January 13, 2004, and January 12th,
2006. [¶] The People have presented evidence of more than one act to prove that the
defendant committed this offense. You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one [of] these
acts and you all agree on which act he committed.” (CALCRIM No. 3500.)




                                             16
III. There was No Error as to Count 2 Concerning M.
              Defendant contends count 2 was barred by the statute of limitations and
must therefore be dismissed. He further argues, even if the charge was not time barred,
the conviction must be reversed because (1) the verdict form did not ask the jury to make
a finding of substantial sexual conduct, (2) the jury was given no guidance and made no
finding on independent corroborating evidence, (3) the unanimity instruction referred to
defendant’s mere touching of M.’s vagina, and (4) the single witness testimony
instructions conflicted with the requirement that M.’s testimony be corroborated.


              A. The Statute of Limitations was Tolled Under Section 803, Subdivision
                 (f)(1)
              The statute of limitations for a violation of section 288, subdivision (a), is
six years. (§§ 288, subd. (a), 800; People v. Smith (2011) 198 Cal.App.4th 415, 424.) In
an amended complaint filed on July 16, 2012, the People alleged defendant committed
section 288, subdivision (a) offenses upon M. between September 9, 1992 and September
8, 1993. Thus, the prosecution of count 2 began more than six years after the alleged
offense.
              In an amended information filed on November 12, 2013, the People first
alleged that the statute of limitations was tolled pursuant to section 803, subdivision (f)(1)
(the tolling allegation). The tolling allegation alleged the victim reported the offense to a
law enforcement agency on June 18, 2012, the offense involved substantial sexual
conduct as described in section 1203.066, subdivision (b), and that the People relied on
the “additional victims” for independent admissible evidence.
              Section 803, subdivision (f)(1) extends the statute of limitations (under
certain circumstances) when a victim reports to California law enforcement that, while
the victim was under the age of 18 years, a section 288 crime was committed against him
or her. The statute allows the People to file a complaint within one year of the victim’s



                                             17
report if (1) the crime involved substantial sexual conduct under section 1203.066,
subdivision (b) (defined to include penetration of the victim’s vagina by a foreign
object), and (2) independent admissible evidence (not including opinions of mental health
professionals) corroborates the allegation and, if the victim was at least 21 years old
when reporting the crime, the independent evidence must be clear and convincing.
                                       8
(§ 803, subd. (f)(2)(B), (C) & (3).)
              Here, within one month after M. first reported the crime to Anaheim law
enforcement in June 2012, the People charged defendant with the offense in an amended
complaint. But the People filed the amended information containing the tolling
allegation almost 17 months after M. lodged her report.
              Section 1009 authorizes a court to permit a complaint or information to be
amended “for any defect or insufficiency, at any stage of the proceedings.” The statute
further provides: “The defendant shall be required to plead to such amendment or
amended pleading forthwith . . . and the trial or other proceeding shall continue as if the
pleading had been originally filed as amended, unless the substantial rights of the
defendant would be prejudiced thereby, in which event a reasonable postponement, not
longer than the ends of justice require, may be granted. An . . . information [cannot be
amended] so as to charge an offense not shown by the evidence taken at the preliminary
examination. . . .” (Italics added.)
              Similarly, under section 960, “[n]o accusatory pleading is insufficient, nor
can the trial, judgment, or other proceeding thereon be affected by reason of any defect or
imperfection in matter of form which does not prejudice a substantial right of the
defendant upon the merits.” (Italics added.)



8
              A third statutory requirement — i.e., that the “limitation period specified in
Section 800, 801, or 801.1, whichever is later, has expired” (§ 803, subd. (f)(2)(A)) —
was met in this case.

                                             18
               Here, defendant’s substantial rights were not prejudiced by the late addition
of the tolling allegation because defendant was given notice of the pertinent facts at his
January 10, 2013 preliminary hearing at which he and his counsel were present. There,
an officer testified, as to M., that he interviewed her on June 18, 2012, and she told the
detective that defendant “stuck a finger inside of her vagina” at a friend’s birthday party
           9
in 1993.
               Accordingly, count 2 was not time-barred due to the timing of the
amendment of the information which added the tolling allegation.


               B. Jury Instructions and Verdict Form
               Defendant complains that the court instructed the jury with CALCRIM No.
1110 on lewd acts on a child under the age of 14 years with respect to counts 1, 2, and 3,
which describes the conduct element as follows: “The defendant willfully touched any
part of a child’s body either on the bare skin or through the clothing.” He further
complains that the court instructed the jurors they had to unanimously agree that the
9
               Defendant contends the tolling allegation “changed” the charged offense
because section 803, subdivision (f)(1) “added the requirement [of] substantial sexual
conduct that had to be proved by independent corroborating evidence” by clear and
convincing proof. Although defendant “has found no specific case” supporting his
contention the tolling allegation “changed” the charged crime, he urges us to adopt his
position pursuant to People v. Morgan (1977) 75 Cal.App.3d 32. Morgan states the
statute of limitations in criminal matters is jurisdictional and that a charging document
which shows on its face the prosecution is time-barred fails to state a public offense. (Id.
at p. 36.) But Morgan also states: “An amendment to toll the statute of limitations does
not change the offense charged and thus is permissible.” (Id. at p. 38; see also People v.
Chadd (1981) 28 Cal.3d 739, 758.) Furthermore, “there is neither claim nor showing that
such an amendment would prejudice the substantial rights of this defendant . . . .”
(Chadd, at p. 758.) As to jurisdiction, the “tolling of the statute of limitations is an
essential element in the final power to pronounce judgment, but is not part of the crime
itself.” (Morgan, at p. 40.)
               In any case, defendant’s focus on “changing” the charge is contrary to
section 1009’s express standard, which prohibits an amendment which charges “an
offense not shown by the evidence taken at the preliminary examination.” (Ibid.)

                                             19
People had proved he committed at least one act of “touching” M.’s vaginal area for
count 2. He argues touching a victim’s vaginal area or body part does not constitute
substantial sexual conduct. He asserts the verdict form for count 2 did not expressly
require the jury to make a finding of substantial sexual conduct. He also asserts the jury
made no finding that independent evidence corroborated M.’s allegation.
                Defendant’s complaints are meritless. On the verdict form for count 2, the
jury found true “that the prosecution of this count began within the required time period,
pursuant to Penal Code section 803(f)(1).” The court instructed the jurors that in order to
find the tolling allegation to be true, they had to find (1) substantial sexual conduct, and
(2) independent corroborating evidence by a clear and convincing standard of proof, as
follows: “If the People have met their burden of proving beyond a reasonable doubt the
crime charged in count 2, then you must decide whether the prosecution for that count
began within the required time period, pursuant to Penal Code section 803(f)(1). [¶] The
People must prove the following factual allegations by a preponderance of the
evidence. . . . [¶] . . . [¶] . . . [T]wo, the crime involved substantial sexual conduct. [¶]
Substantial sexual conduct includes penetration of the vagina . . . of . . . the victim . . . by
any foreign object. [¶] . . . [¶] The People must also prove the following allegation by
clear and convincing evidence. . . . This means, the People must persuade you that it is
highly probable that the fact is true. [¶] Three, there is independent evidence, not
including the opinion of a medical health professional, that corroborates [M.’s]
allegation. [¶] . . . [¶] You will receive a separate finding form on count 2, and you must
decide whether the People began the prosecution of count 2 within the required time
           10
period.”




10
               Because there is no pattern instruction for section 803, subdivision (f)(1),
the parties agreed to the text of the instruction given.

                                               20
              The foregoing instruction was clear and complete. It told the jurors they
were to make a finding on the tolling allegation only if they had already found defendant
guilty beyond a reasonable doubt on count 2. It told the jurors the precise requirements
of section 803, subdivision (f)(1) for determining whether the People had begun
prosecuting count 2 within the required time period.
              “Jurors are presumed able to understand and correlate instructions and are
further presumed to have followed the court’s instructions.” (People v. Sanchez (2001)
26 Cal.4th 834, 852.) We presume the jury followed CALCRIM No. 1110 in finding
defendant guilty of count 2, and followed the specific instruction on the tolling allegation
in finding the People had timely prosecuted the charge. The verdict form plainly required
the jurors to make separate findings on count 2 and the tolling allegation.
              Defendant next contends the court erred with respect to the tolling
allegation by instructing the jury that the “testimony of only one witness can prove any
fact” (CALCRIM No. 301) and that conviction of a sexual assault crime may be based
solely on the complaining witness’s testimony (CALCRIM No. 1190). He argues the
court erred by failing to include the optional introductory phrase of the pattern
CALCRIM No. 301 instruction, which states, “Except for the testimony of <insert
witness’s name>, which requires supporting evidence . . . .” We agree the better practice
would have been for the court to include this phrase with respect to the tolling allegation.
Nonetheless, “we must look to the entire charge, rather than merely one part, to
determine whether error occurred. [Citation.] Looking to the instructions as a whole, we
find no error.” (People v. Chavez (1985) 39 Cal.3d 823, 830–831.) The jury was
instructed that the People were required to prove, clearly and convincingly (i.e.,
persuading the jury there was a high probability the fact was true), that independent
evidence (not including the opinion of a medical health professional) corroborated M.’s
allegation. We presume the jury correctly correlated and followed the court’s
instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)

                                             21
              Finally, defendant asserts the jury was provided no guidance on what
constituted the independent corroborating evidence on which the prosecution relied. As
stated above, the jury was instructed on all of the statutory requirements for independent
corroborating evidence set forth in section 803, subdivision (f)(1). Defendant cites no
legal authority as to the need for any further “guidance” to the jury.

IV. Defendant Has Waived His Prosecutorial Misconduct and Other Contentions
    Inadequately Briefed in Section IV of His Opening Brief


              Section IV of defendant’s opening brief complains about the prosecutor’s
elicitation of alleged “bad character evidence” during his cross-examination of
defendant’s expert psychologist and closing argument regarding defendant, as well as
about defense counsel’s purported ineffective assistance. But section IV does not address
or even acknowledge that Evidence Code section 1101, subdivision (a)’s “ban against
admitting character evidence to prove conduct . . . [citation] . . . does not affect the
admissibility of evidence regarding the credibility of a witness [citation].” (Villatoro,
supra, 54 Cal.4th at p. 1159; § 1101, subd. (c).) The opening brief does not mention
Evidence Code sections 785 (witness’s credibility may be attacked by any party), 721,
subdivision (a)(3) (expert witness may be fully cross-examined on the basis and reasons
for opinion), or 1202 (impeachment of hearsay declarant’s credibility).
              The Attorney General contends section IV of defendant’s opening “brief
alleging, in ‘kitchen sink’ fashion, prosecutorial misconduct, ineffective assistance of
defense counsel, the failure to give character evidence instructions, introduction of
irrelevant evidence and the violation of [his] due process rights fails to comport with the
rules of court and should be stricken.”




                                              22
              The Attorney General is correct that defendant has waived the purported
errors alleged in section IV of his opening brief. A court may treat an inadequately
argued contention “as waived, and pass it without consideration.” (People v. Stanley,
supra, 10 Cal.4th at p. 793; Cal. Rules of Court, rule 8.204(a)(1)(B).)


V. There is No Cumulative Error
              Defendant asserts that, due to cumulative error, he was prejudiced and the
judgment must be reversed. As discussed above, his allegations of error are without
merit; therefore, there is no cumulative effect to consider.


VI. The Abstract of Judgment Must Be Corrected
              Finally, the Attorney General correctly points out the abstract of judgment
fails to indicate that the court sentenced defendant to consecutive terms of 15 years to life
on counts 1 and 3. When there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral pronouncement
controls. (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) Accordingly, the
abstract of judgment must be amended.




                                             23
                                      DISPOSITION


              The trial court is directed to prepare an amended abstract of judgment
reflecting that the court sentenced defendant to consecutive terms of 15 years to life on
counts 1 and 3, and a consecutive six-year term on count 2, and is directed to forward a
certified copy to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.




                                                 IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                            24
