Filed 2/14/14 P. v. Isida CA2/8
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                         B245442

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. KA096176)
         v.

ROBERTO A. ISIDA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Tia Fisher, Judge. Affirmed in part and reversed in part.


         Edward J. Haggerty, 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, Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.


                                      __________________________
       Defendant and appellant Roberto A. Isida appeals from his convictions of
aggravated sexual assault and continuous sexual abuse of his granddaughter, O.D.1 He
contends the trial court prejudicially erred in: (1) denying his motion to suppress
statements obtained in violation of his Miranda rights;2 (2) admitting evidence that he
had a sexual encounter with a consenting adult in the presence of his teenage daughters;
(3) excluding evidence that the victim made an alleged false accusation against another
person; (4) allowing the jury to convict him of both continuous sexual assault and an
aggravated sexual assault occurring during the same time period; (5) failing to instruct
the jury that they could not convict of both continuous sexual assault and an aggravated
sexual assault occurring during the same time period; and (6) imposing a $240 restitution
fine. We dismiss the continuous sexual assault conviction and otherwise affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     People’s Case

       Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that defendant had one son (Robert)


1      Defendant was charged by amended information with aggravated sexual assault of
a child, sexual penetration (Pen. Code, § 269, subd. (a)(5)) (counts 1, 3, 5); aggravated
sexual assault of a child, sodomy (Pen. Code, § 269, subd. (a)(3)) (count 2); aggravated
sexual assault of a child, oral copulation (Pen. Code, § 269, subd. (a)(4)) (count 8);
continuous sexual abuse (Pen. Code, § 288.5, subd. (a)) (count 4); sexual penetration with
a child (Pen. Code, § 288.7, subd. (b)) (count 6); and oral copulation with a child (Pen.
Code, § 288.7, subd. (b)) (count 7). After the close of evidence, the People dismissed
counts 3 and 5. The jury convicted defendant on counts 1 and 4, but found him not guilty
of counts 2, 6, 7 and 8. After denying defendant’s motions to set aside the verdict and for
a new trial, the trial court sentenced defendant to 15 years to life in priso n comprised of
15 years to life for aggravated sexual assault, sexual penetration (count 1); it struck the
conviction for continuous sexual abuse (count 4) “for purposes of sentencing.”
Defendant timely appealed.
       All further undesignated statutory references are to the Penal Code.

2      Miranda v. Arizona (1966) 384 U.S. 436.


                                             2
and four daughters (Lizbeth, A.I., R.I. and M.I.).3 Born in Mexico to Lizbeth, O.D. was
about five years old when she came to the United States in 2004. By 2007, O.D. was
living with her mother and her four younger brothers in an apartment in El Monte.
Defendant lived in a two bedroom apartment in the same building (apartment 207) with
maternal grandmother, M.I., R.I. and Robert. When O.D. occasionally slept over at her
grandparents’ apartment, she slept in the room M.I. and R.I. shared, on the floor between
their twin beds. By late 2010, the maternal grandmother had moved out and in early
2011, Lizbeth and her children moved in to live with defendant, M.I., R.I. and Robert.
        Beginning when O.D. was 8 years old and until she was 11 years old, defendant
sexually abused O.D. At trial, O.D. described eight specific incidents all occurring when
she was either visiting or living in apartment 207. O.D. knew that the way defendant was
touching her was wrong, but she did not know what to do about it. On at least one
occasion, O.D. told her mother (Lizbeth) that defendant would not leave her alone, but
did not specify what he was doing to her and Lizbeth did not inquire. But in the early
morning hours of August 29, 2011, Lizbeth woke O.D. up and asked if she had felt
defendant lying next to her. O.D. said she had not, but in response to additional questions
admitted that defendant had been sexually abusing her. When O.D. came home from
school that day, Lizbeth took her to the police station where she told the officers what
defendant had been doing.
        At the time of trial, O.D. was in foster care and wanted to return to her mother’s
home.
        Lizbeth testified that she never noticed anything unusual when defendant and O.D.
were together; O.D. did not seem upset after spending time with defendant. Defendant
played with all of the children and was not particularly affectionate towards O.D.
Sometime in 2009, maternal grandmother told Lizbeth that she had observed O.D. spray
perfume on her vagina. In response to Lizbeth’s inquiry, O.D. said it was so that
defendant would stop doing things to her. Lizbeth did not ask O.D. what she meant. On

3      In August 2012, defendant testified that Roberto was 27 years old, Lizbeth was 26,
A.I. was 25, R.I. was 16 and M.I. was 14.

                                              3
August 29, after Lizbeth came home in the early morning hours and saw defendant in the
living room near O.D., Lizbeth woke O.D. and asked if she felt defendant near her while
she was asleep. O.D. said she did not. With the perfume incident in mind, Lizbeth asked
O.D. if defendant had done anything to her in the past. O.D. answered affirmatively.
When O.D. came home from school that day, Lizbeth asked her again whether defendant
had done anything to her. O.D. said defendant had touched her private parts several
times, but she did not give any details. Lizbeth did not talk to defendant again until
several months later when the police arranged a phone call in which Lizbeth was to try to
get defendant to say something about what he had done to O.D.
       Defendant was arrested in New Mexico in November 2011 and extradited to
California. On December 15, 2011, Detectives Jimmie Pitts and Carlos Molina
interviewed defendant at the El Monte police station. A video recording of the interview
was played for the jury and they were provided a transcript of the interview, in both
Spanish and English. After initially denying any misconduct, defendant eventually
confessed to sexually abusing O.D. three or four times by placing his finger in her vagina.
Defendant said that O.D. would come into his room and he would tell her to leave, but
she would take his hand and put it into her pants. Defendant denied any other sexual
conduct with O.D. Defendant knew that, as an adult, he should not have let it happen.

B.     Defense Case

       M.I. and R.I., both testified. Each confirmed that before O.D. moved into
apartment 207, she occasionally slept on the floor in between their twin beds. M.I. and
R.I. denied ever observing any sexual contact between O.D. and defendant. Each
described themselves as light sleepers and both denied that defendant ever had sexual
contact with O.D. while she was sleeping in their room. They also denied that defendant
ever sexually abused them, and denied ever observing him sexually abuse any child. M.I.
and R.I. also testified about a trip to New Mexico defendant took them on in August
2011, so that defendant could have a liaison with a woman he met on the internet. The
two girls shared a motel room with defendant and were awakened by the sound of

                                             4
defendant having sex in the other bed with the woman he had met there. At trial, M.I.
and R.I. were somewhat vague about what they saw and heard, but admitted that a social
worker’s account of what the sisters said was accurate.
       Defendant testified and denied ever touching Lizbeth, R.I., M.I. or O.D. in a
sexual or inappropriate way. When defendant got home from work at about 10:15 p.m.
on August 28, 2011, M.I. and R.I. were asleep in their room and Lizbeth’s children were
asleep in the living room, but Lizbeth was not there. Lizbeth had not returned by the time
defendant finished showering. Defendant went to sleep in his room. Waking up at about
1:00 or 1:30 a.m., defendant went to the kitchen for a drink of water, and then went into
the living room to see if Lizbeth had returned. When he did not see her asleep on the
living room floor, defendant looked out the window to see if she was talking by the stairs
as she sometimes did. Not seeing her there, defendant went to check if the front door was
open. Just as defendant got to the door, Lizbeth opened it. Defendant said, “You scare
me,” then took his glass of water and returned to his bedroom. Defendant denied that he
had been lying next to O.D. Defendant awoke the next morning at 6:00 a.m. to take R.I.,
M.I. and O.D. to school. Lizbeth would not speak to defendant, except to tell him that
O.D. had walked to school. While driving with R.I. and M.I. to school that morning,
defendant encountered O.D. walking; she accepted his offer of a ride. Defendant dropped
O.D. and M.I. off at their school, and R.I. off at her school. During the day, defendant
followed his usual habit of calling Lizbeth to check on his daughters, but she did not
answer her phone or return his more than 20 calls. When defendant arrived home that
night, the apartment was empty. Defendant felt scared, much like when his wife left him.
He was not afraid because he had done anything to O.D., he was just afraid because his
wife had left him, he had financial problems and cancer. So he got in his car and started
driving, and the next thing he knew he was in Arizona and then New Mexico. He felt so
badly about himself, that he did not want to think of M.I. and R.I., except to assume that
their mother would come back to take care of them. Defendant did not call anyone in his
family for the next several months, because he did not want them to know how he was
destroying himself. When interviewed by the police, defendant falsely said that he

                                             5
sexually abused O.D. because the officers promised he could see his daughters if he did
so, and promised a lighter sentence if he admitted to certain things. Defendant came to
believe that the only way out was to falsely confess to some things, but not others.
Defendant did not know that the interview was video recorded.
       Defendant admitted going to New Mexico to meet a woman. He brought R.I. and
M.I. because he did not have confidence that Lizbeth would be able to take care of them
and her own children. The woman he met in New Mexico spent just one night in the
hotel room he shared with his daughters. At about 2:00 or 3:00 a.m., they had sex.
Defendant believed that his daughters were asleep the whole time.

                                      DISCUSSION

A.     Defendant’s Miranda Waiver Was Knowing And Voluntary

       Defendant contends the trial court erred in denying his motion to suppress the
statement he made to the police in December 2012. He argues his Fifth Amendment
rights were violated because his Miranda waiver was not voluntary for the following
reasons: (1) the waiver was tainted by improper pre-advisement “softening up” tactics;
(2) he was tricked into waiving his rights because the police minimized those rights; and
(3) the waiver was in exchange for a promise of leniency. We find no error.

       1.     The Miranda Rule and Standard of Review

       The Miranda rule creates a generally irrebuttable presumption that any statement
made by a defendant not previously advised of his or her Miranda rights was not
voluntary and may not be used as evidence in the prosecution’s case-in-chief. (United
States v. Patane (2004) 542 U.S. 630, 639.) The rule applies only to statements made in
response to questioning initiated by the police. The rule is not triggered by “small talk”
with a suspect “as long as the speech would not reasonably be construed as calling for an
incriminating response. [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 387
(Gamache) [inquiring about the suspect’s military service was not “interrogation” for


                                             6
purposes of Miranda].) Questions intended to obtain biographical information and not
incriminatory responses are also exempted from the rule. (People v. Williams (2013)
56 Cal.4th 165, 187 (Williams).)
       The prosecution must establish a valid Miranda waiver “by a preponderance of the
evidence that the waiver was knowing, intelligent, and voluntary under the totality of the
circumstances of the interrogation. [Citation.]” (People v. Linton (2013) 56 Cal.4th
1146, 1171.) No express waiver is necessary. An implied waiver occurs when a
defendant is advised of his rights, indicates he understands those rights, and then
responds to police questions without requesting an attorney. (People v. Nelson (2012)
53 Cal.4th 367, 375.) A suspect who responds to “unwarned yet uncoercive questioning”
may later waive his rights and confess after being given a proper Miranda warning.
(People v. Camino (2010) 188 Cal.App.4th 1359, 1368.) But police may not deliberately
engage in a two step-process of questioning the suspect to elicit a confession, then giving
the Miranda warnings and questioning the suspect a second time. (Missouri v. Seibert
(2004) 542 U.S. 600, 617, 622.)
       A waiver elicited by an express or implied promise of leniency is not voluntary;
threats of harsh punishment are treated as promises of leniency. (People v. Cahill (1994)
22 Cal.App.4th 296, 311.) However, there is no Miranda violation where police simply
urge the suspect to tell the truth and factually outline the benefits that may flow from
confessing. (People v. Holloway (2004) 33 Cal.4th 96, 117 [fine line between describing
benefits of confessing and promising leniency].)
       On review from denial of a motion to suppress, the appellate court must accept the
trial court’s resolution of disputed facts and inferences, and its evaluations of credibility,
if they are substantially supported. (People v. Camino, supra, 188 Cal.App.4th at
pp. 1370-1371.) We independently determine from the facts found whether the
challenged statement was illegally obtained. (Ibid.)




                                               7
       2.     Factual Background

       After being arrested in New Mexico and extradited to California, defendant
arrived at the El Monte police station at about 9:00 or 10:00 p.m. on December 13, 2011.
That night, defendant spoke to Detective Pitts with the help of another officer who acted
as an interpreter. Pitts told defendant that he would be interviewed the next day and
asked if defendant wanted to talk to someone on the telephone or to an attorney.
Defendant asked to speak to his daughter, A.I., so that she could obtain an attorney for
him. Defendant gave Pitts A.I.’s telephone number with the understanding that Pitts
would make the call. Defendant never asked anyone about the status of the call to A.I.
There was a telephone in defendant’s jail cell from which he attempted to make a call,
but defendant could not understand how the phone worked so he hung up and did not try
again. Pitts testified that defendant asked for neither a phone call nor for an attorney
during their initial meeting the night of December 13. The trial court found that
defendant did not unequivocally invoke the right to counsel and defendant does not
challenge that ruling.
       When Detectives Pitts and Molina interviewed defendant on December 15,
defendant spoke some English, but for the most part Molina translated. The interview
began with Molina giving defendant a phone so that he could call one of his daughters.
Defendant’s side of the call was recorded.4 Apparently speaking to Lizbeth, defendant
states: “So it’s not, it’s not the first time [O.D.] lied. Remember how she lied about your
mother at school. She, she went around saying all those things. But everybody knows
that already, okay?” Defendant also states, “Because I know what that girl is capable of,
okay? And if you think I touched your daughter, I’m sorry. I didn’t touch her. Honest.”
After the call ends, the officers verified defendant’s name and address, the names of his
daughters and the people living in apartment 207, as well as defendant’s employment


4      Miranda is not applicable to surreptitious taping of a conversation that does not
involve police interrogation. (People v. Jefferson (2008) 158 Cal.App.4th 830, 841; see
also People v. Mayfield (1997) 14 Cal.4th 668, 757-758 [no Miranda violation where
police officers secretly taped conversation between suspect and his father].)

                                              8
history. After Pitts told defendant that his job is not to arrest people, but to take the
arresting officers’ report and try to find out the truth, the officers gave defendant his
Miranda warning in Spanish and English. Defendant stated that he understood his rights;
he did not ask for an attorney. During the ensuing interview, the officers told defendant
that O.D. admitted pursuing a sexual relationship with defendant and that defendant never
forced her to do anything. Defendant agreed that O.D. “came after” him. He initially
denied ever touching O.D. inappropriately. But eventually, the following colloquy
occurred:
       “[Molina:] . . . Roberto, how many times has it happened with her?
        [Defendant:] I don’t know.
        [Molina:] More than five?
        [Defendant:] No.
        [Molina:] Fewer than five? How many times?
        [Defendant:] Four or three times.
        [Molina:] Four or three times? And those four or three times what did you do to
             her? Hmm?
        [Defendant:] Nothing, I’d just put my hand there and I, the way she told me to.”

Over the course of the interview, defendant described four occasions on which he
touched O.D., but adamantly denied that he raped or sodomized her.

       3.     “Softening Up” Tactics

       Defendant contends his Miranda waiver was not voluntary because it resulted
from the detectives’ “softening up” tactics, including arranging for defendant to talk to
his daughter, and then engaging him in small talk about his general background, before
advising him of his rights. We disagree.
       A purported waiver of Miranda rights which “results from a clever softening-up of
a defendant” is by law involuntary. (People v. Honeycutt (1977) 20 Cal.3d 150, 160-161
(Honeycutt); see also People v. Munoz (1978) 83 Cal.App.3d 993, 997 [same].) After the
defendant in Honeycutt was arrested but before he was advised of his Miranda rights, the
defendant and a detective with whom the defendant was familiar talked about unrelated
matters for half an hour. The detective testified that he refrained from talking about the

                                               9
offense, but told the defendant that the murder victim was himself a suspect in a homicide
and was thought to have homosexual tendencies. Eventually, the defendant indicated he
would talk about the killing. Three hours after he was arrested, the defendant was
advised of his Miranda rights, waived them and confessed to the killing. The Honeycutt
court observed: “When the waiver results from a clever softening-up of a defendant
through disparagement of the victim and ingratiating conversation, the subsequent
decision to waive without a Miranda warning must be deemed to be involuntary for the
same reason that an incriminating statement made under police interrogation without a
Miranda warning is deemed to be involuntary.” (Honeycutt, at pp. 160-161.) In People
v. Scott (2011) 52 Cal.4th 452, our Supreme Court explained that the two salient features
in Honeycutt were that the interrogating officers (1) sought to ingratiate themselves with
the suspect and (2) disparaged the victim. (Id. at p. 479.) Because those factors were not
present in Scott, the court found Honeycutt inapplicable.
       For the same reason, we find Honeycutt inapplicable to this case. Nothing the
detectives said before advising defendant of his Miranda rights could be construed as
disparaging O.D. And questioning defendant about his correct name, address, and similar
information does not qualify as the kind of ingratiation condemned by Honeycutt. (See
William, supra, 56 Cal.4th at p. 187 [questions to obtain biographical data necessary to
complete the booking process are exempted from the Miranda rule]; Gamache, supra,
48 Cal.4th at p. 388 [police officer engaging in small talk that cannot reasonably be
construed as calling for an incriminating response does not violate Miranda].) The
record in this case shows no use of any improper “softening up” tactics.

       4.     Trivialization Of Miranda Rights

       Defendant next contends his Miranda waiver should be deemed involuntary
because the detectives trivialized those rights by telling defendant that he had already
been arrested and the officers were there to find the truth and defendant’s “side of the
story.” We once again disagree.



                                             10
       “[E]vidence of police efforts to trivialize the rights accorded suspects by the
Miranda decision—by ‘playing down,’ for example, or minimizing their legal
significance—may under some circumstances suggest a species of prohibited trickery and
weighs against a finding that the suspect’s waiver was knowing, informed, and
intelligent.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1237.) In Musselwhite, the
detective prefaced the Miranda advisement with the following comment: “ ‘Well, we
don’t know what you know and what you don’t know and so, what we’d like to do is just
go ahead and advise you of your rights before we even get started and that way, that
there’s no problem with any of it. Is that alright with you?’ ” (Ibid.) Rejecting the
defendant’s contention that this comment improperly minimized his Fifth Amendment
rights, the Musselwhite court observed: “Given the brevity, as well as the accuracy, of
Detective Bell’s statement, the fact that the officers never described the Miranda warning
as a ‘technicality’ or used similar words, the absence of similar comments during the
course of the questioning, defendant’s record of police encounters as evidenced by two
prior felony convictions, the likelihood he was aware he was a suspect in a murder
investigation . . . we conclude the record fails to support defendant’s claim that the
importance of his Miranda rights was misrepresented by the detectives and that he was
thereby ‘tricked’ into waiving them.” (Id. at p. 1238.)
       In People v. Johnson (2010) 183 Cal.App.4th 253, the court held that the police
did not misrepresent the significance of the robbery and felony-murder suspect’s rights
“by referring to them as ‘clear[ing] a technicality,’ describing the interview as a chance
for [the supect] to get answers, encouraging her to talk freely and to ask any questions,
not telling her the statements ‘will’ be used in court, and by not asking her if she wished
to waive her rights.” (Id. at p. 294.) In that case, it was clear from the record that the
suspect “understood the severity of the situation and the seriousness of the Miranda
rights the detectives provided her.” (Id. at p. 295.)
       Here, there is no evidence that the detectives tried to trick defendant into waiving
his Miranda rights by minimizing. The detectives never described the Miranda
advisement as a mere technicality. Like the defendant in Johnson, defendant here

                                              11
understood the severity of his situation – he knew he was suspected of abusing his
granddaughter – and from that it is reasonable to infer that he understood the seriousness
of his Miranda rights.

       5.     Promises of Leniency

       Defendant next contends promises of leniency made throughout the post-
advisement interview render his Miranda waiver involuntary. He argues that Pitts and
Molina “sought to minimize the alleged fondling [of O.D. by defendant] and to suggest
that his admission to digital penetration . . . would expose him to minimal penal
consequences – unlike rape or penile penetration that would result in possibly 50 or 60
years in custody.”5 Again, we disagree.
       The business of police detectives is investigation. To obtain a confession, they
may use psychological ploys which are not so coercive that they would tend to produce a
statement that is both involuntary and unreliable. (People v. Jones (1998) 17 Cal.4th 279,
298.) Police may discuss with the suspect “any ‘advantage’ or other consequence that
will ‘naturally accrue’ in the event the accused speaks truthfully about the crime.”
(People v. Ray (1996) 13 Cal.4th 313, 340.) Confessions given in the wake of a
generalized, non-specific promise to help have been upheld as voluntary. (See e.g.
People v. Clark (1993) 5 Cal.4th 950, 980-989 [no promise of implied leniency where
murder suspect asks, “ ‘[w]hat can someone get for something like this, thirty years?’ ”
and officer replies, “ ‘[p]robably not unless you were a mass murderer [ ]’ ”],
disapproved of on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.); People v. Benson (1990) 52 Cal.3d 754, 770-782 [no implied promise of


5        Defendant is incorrect that the detectives mischaracterized “digital penetration”
without force as a less serious offense than “penile penetration.” In fact, under the
circumstances of the charged offenses, so-called forced penile penetration is more
severely punished than digital penetration. (Compare § 288.7, subd. (a) [sexual
intercourse or sodomy with a child 10 years of age or younger is punishable by 25 years
to life in prison]; with § 288.7, subd. (b) [oral copulation or sexual penetration of a child
10 years of age or younger is punishable by 15 years to life in prison].)

                                              12
leniency where officer tells murder suspect that officer has seen worse crimes and that the
situation “is not the end of the line[,]” and when suspect says it is, the officer replies,
“[t]here is no death penalty here.”].)
       Here, the statements made by the detectives to the effect that defendant would
benefit in unspecified ways from telling his side of the story, and that the lack of force
made his conduct less serious than if force had been used, were not the kind of statements
that would produce an involuntary and unreliable confession. Accordingly, we find no
error in the trial court’s conclusion that defendant’s Miranda waiver was voluntary.

B.     No Abuse of Discretion In Admitting Evidence That Defendant Had Consensual
       Sex In the Presence of His Minor Daughters

       Defendant contends he was denied due process by the admission of evidence that
defendant had consensual sex with a woman while M.I. and R.I. were sleeping in another
bed in the same hotel room. He argues the evidence was irrelevant and, alternatively,
was more prejudicial than probative under Evidence Code section 352. We find no abuse
of discretion.
       We review a trial court’s ruling on the admissibility of evidence, including under
Evidence Code section 352, for abuse of discretion. (People v. Scott, supra, 52 Cal.4th at
p. 491.) The erroneous admission of evidence is only a violation of due process if there
are no permissible inferences the jury may draw from such evidence. (People v.
Albarran (2007) 149 Cal.App.4th 214, 229.)
       One exception to the general admissibility of all relevant evidence (Evid. Code,
§ 351) is character evidence, including specific conduct, which is inadmissible to prove
the defendant’s conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) But
there are statutory exceptions to this rule, too. The exceptions applicable here are
Evidence Code sections 1102 and 1108. Evidence Code section 1108 makes evidence
that a defendant accused of a sexual offense committed another sexual offense
admissible. (Evid. Code, § 1108.) Evidence the defendant did not molest children other




                                              13
than the victim is also admissible character evidence under Evidence Code section 1108.
(People v. Callahan (1999) 74 Cal.App.4th 356, 375-376.)
       Evidence Code section 1102, subdivision (a) makes evidence of a defendant’s
character admissible if offered by the defendant to prove that he acted in conformity with
that character. (Evid. Code, § 1102, subd. (a)) But once the defendant introduces
character evidence, the prosecution may rebut it with other character evidence. (Evid.
Code, § 1102, subd. (b); People v. Pangelina (1984) 153 Cal.App.3d 1, 8 [“Evidence of
the defendant’s bad character is not admissible in a criminal case unless he first
introduces evidence of his good character.”]; see also People v. Lankford (1989)
210 Cal.App.3d 227, 231 [“[W]here the defendant in a criminal case offers evidence of
specific acts affecting his credibility and good character, the prosecution is not prohibited
from impeaching him with evidence of relevant specific instances of his conduct . . . .”].)
       Here, the prosecutor objected to defense counsel asking Lizbeth whether
defendant had ever touched her inappropriately, arguing that this was inadmissible
character evidence. The trial court overruled the objection after a side bar conference in
which it alerted defense counsel that the question may open the door to the prosecutor
eliciting evidence of what happened in the New Mexico motel room. Lizbeth testified
that defendant never touched her inappropriately. When defense counsel later indicated
she intended to ask M.I. and R.I. similar questions, the trial court reiterated that doing so
might make the New Mexico hotel room incident relevant. After taking under
submission defendant’s relevance and Evidence Code section 352 objections to evidence
of the New Mexico incident, the trial court overruled those objections. It explained that it
was not admitting the evidence under Evidence Code section 1101 [character evidence
inadmissible to prove conduct] or 1108 [evidence of other sexual offenses admissible to
prove charged sex offense]. Without referring specifically to Evidence Code
section 1102, subdivision (b), the trial court found the New Mexico incident was relevant
to the witnesses’ credibility and bias in favor of defendant. Further, the trial court found
the probative value of the challenged evidence outweighed any potential for undue
prejudice. (Evid. Code, § 352.)

                                             14
       We find no abuse of discretion. Since defendant was charged only with sexual
abuse of O.D., M.I.’s and R.I.’s testimony that defendant did not engage in sexualized
behaviors with them, and they did not see him do so with any other child, was specific act
character evidence. In other words, the only relevance of this evidence was to show
defendant’s good character as a person who was not sexually inappropriate with children.
Thus, M.I. and R.I. were reputation witnesses. As such, the prosecution was entitled to
impeach them with specific act evidence that tended to prove defendant’s character as a
person who was sexually inappropriate in his minor daughters’ presence. (See Evid.
Code, § 1102, subd. (b); Lankford, supra, 210 Cal.App.3d at p. 240.) We find no abuse
of discretion in the trial court’s finding that the New Mexico incident was such evidence.
Nor do we find any abuse of discretion in the trial court’s conclusion that the challenged
evidence was not more prejudicial than probative.
       Even assuming, for the sake of argument only, that it was error to admit evidence
of the New Mexico incident, we find the error harmless under any standard. O.D.’s
testimony and defendant’s confession were overwhelming evidence of defendant’s guilt
and it is not reasonably probable that the jury would have found defendant not guilty in
the absence of the New Mexico evidence (People v. Watson (1956) 46 Cal.2d 818, 836–
837), and further, any error was harmless beyond a reasonable doubt (see Chapman v.
California (1967) 386 U.S. 18, 24).

C.     Exclusion of Allegedly False Accusation

       Defendant contends the trial court abused its discretion in excluding evidence that
R.I. did not believe O.D. when O.D. said she had sex with a boy at school.6 He argues
the evidence was relevant to the credibility of her accusations against defendant. We
disagree.



6      The Reporter’s Transcript refers to evidence that: “One day [O.D.] told M.I. she
was texting a boy.” (Italics added.) From the context, it is clear this is a typographical
error and the issue was evidence that O.D. claimed to be having sex with a boy.

                                            15
       In determining the credibility of a witness, the trier of fact may consider the
witness’s “character for honesty or veracity or their opposites.” (Evid. Code, § 780,
subd. (e).) A victim’s claim that she has been sexually assaulted in the past by another
man “would have no bearing on her credibility unless it was also established that those
prior complaints were false.” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457; see
also People v. Alvarez (1996) 14 Cal.4th 155, 201 [defense counsel’s speculation that
victim’s prior complaint was false is not credible evidence]; People v. Waldie (2009)
173 Cal.App.4th 358, 363-364.) Evidence of the sexual conduct of the victim (i.e.
“complaining witness”) may be admissible to attack the victim’s credibility, but only
upon written motion of the defendant, accompanied by an affidavit. (Evid. Code, § 782.)
       Here, among the evidence discussed at a pre-trial Evidence Code section 402
hearing, was that R.I. did not believe O.D.’s statement that she had sex with a boy at
school. Defense counsel explained that the evidence was not offered to prove the truth of
the matter (i.e. that O.D. actually had sex with a boy); rather, it was offered to prove O.D.
had a character trait for fabricating sexualized conduct. Therefore, defendant concluded,
Evidence Code section 782 was not applicable. The trial court excluded the evidence for
failure to comply with the procedures set forth in Evidence Code section 782:
“[R]egardless of whether you believe it to be true or not true, it is sexual conduct. And
it’s sexual conduct that one of the aunts would be testifying that [O.D.] said she did this
and that’s sexual conduct.” It alternatively found the evidence inadmissible under
Evidence Code section 352: “[I]n this case all we know is an aunt said she said it.
Whether she said she did it or not, it doesn’t prove she’s lying because who knows
whether she did it or not. It’s sort of circular.”
       We find no abuse of discretion. As in Alvarez, supra, any impeachment relevance
of O.D.’s statement that she had sex with a boy was premised on its supposed falseness.
But the only evidence that the statement was false was that R.I. did not believe it. R.I.’s
belief is not sufficient to support defendant’s assertion that the statement was false.
Further, defendant did not have the right to question O.D. to establish the falseness of her



                                              16
claim. (See Alvarez, supra, 14 Cal.4th at p. 201 [defendant not entitled to question victim
to establish falseness].)

D.     Convictions For Continuous Sexual Assault and Aggravated Sexual Assault

       Defendant contends, and the People agree, that defendant cannot be convicted of
both aggravated sexual assault of a child in violation of section 269, subdivision (a)(5)
(count 1) and also continuous sexual abuse in violation of section 288.5 (count 3),
because both crimes were found to have occurred during the same time period. (§ 288,5,
subd. (c); People v. Johnson (2002) 28 Cal.4th 240, 248.) But the parties do not agree on
the proper remedy. Defendant contends the section 269, subdivision (a)(5) conviction
should be dismissed in accordance with the “special over the general” rule. The People
counter that the section 288.5 conviction should be dismissed because it carries a less
severe sentence.
       As both parties agree, the remedy is to vacate one of the convictions. (People v.
Torres (2002) 102 Cal.App.4th 1053, 1059 (Torres).) In deciding which conviction to
vacate, the Torres court expressly rejected the “special over the general” rule relied upon
by defendant in this case. (Id. at p. 1058.) Rather, it held that, in making the
determination, it is appropriate “that we leave appellant standing convicted of the
alternative offenses that are most commensurate with his culpability.” (Ibid.) In Torres,
the court found dismissal of the continuous abuse conviction was appropriate because it
carried a lower sentence than the specific offense. (Ibid; see also People v. Alvarez,
supra, 100 Cal.App.4th at p. 1177 [prosecution could elect to dismiss § 288.5 count
rather than § 288, subds. (a) and (b) counts: “It would be anomalous if section 288.5,
adopted to prevent child molesters from evading conviction, could be used by those
molesters to circumvent multiple convictions with more severe penalties and prior -strike
consequences than available for a conviction under section 288.5.”].) Also instructive are
the Bench Notes to the 2012 version of CALCRIM No. 1120 [elements of continuous
sexual abuse], which, citing Torres, supra, state: “If a defendant is erroneously convicted
of both continuous sexual abuse and specific sexual offenses and a greater aggregate

                                             17
sentence is imposed for the specific offenses, the appropriate remedy is to reverse the
conviction for continuous sexual abuse. [Citation.]” (Jud. Council of Cal. Criminal Jury
Inst. (2012) Bench Notes to CALCRIM No. 1120, p. 944.)
       Here, the section 269, subdivision (a)(5) conviction (count 1) was punishable by
15 years to life in prison. (§ 269, subd. (b).) The section 288.5 conviction (count 3) was
punishable by 6, 12 or 16 years. (§ 288.5, subd. (a).) The trial court selected the
indeterminate life sentence imposed on count 1 as the base term and struck count 4 “for
purposes of sentencing.”7 Thus, the trial court found an indeterminate life term was
commensurate with defendant’s culpability. We find no abuse of discretion in that
finding, but conclude that rather than striking count 4 for “purposes of sentencing,” the
appropriate procedure is to dismiss count 4.

E.     CALCRIM No. 3516

       Defendant contends he was denied his federal due process right and his state and
federal right to a jury trial as a result of the trial court’s failure to instruct on the
alternative nature of continuous sexual abuse and specific sexual offenses occurring
during the same time period, by giving CALCRIM No. 3516. We disagree.
       As we have already discussed, subdivision (c) of section 288.5 precludes charging
both a violation of section 288.5 and a separate discrete sexual offense against the same
victim, occurring in the same period of time. (Johnson, supra, 28 Cal.4th at pp. 244–
248.) CALCRIM No. 3516 states:
               “The defendant is charged in Count ____ with _________ and in Count
               ____ with _________. These are alternative charges. If you find the
               defendant guilty of one of these charges, you must find (him/her) not guilty
               of the other. You cannot find the defendant guilty of both.”



7       While a trial court may dismiss a count in the furtherance of justice pursuant to
section 1385, it has no authority to simply strike counts “for the purpose of sentencing.”
(People v. Clancey (2013) 56 Cal.4th 562, 573-574 [trial court “ ‘has no authority to
substitute itself as the representative of the People in the [plea] negotiation process . . . .’
[Citation.]”.)

                                                18
(Jud. Council of Cal. Criminal Jury Inst., supra, CALCRIM No. 3516.) According to the
Bench Notes for CALCRIM No. 3516, when the defendant is charged with violation of
section 288.5 and a specific sexual offense occurring during the same period, the trial
court may either give this instruction or it may determine which conviction to dismiss
pursuant to section 288.5, subdivision (c). (Jud. Council of Cal. Criminal Jury Inst.,
supra, Bench Notes to CALCRIM No. 3516, p. 1098.) Although the Bench Notes for
CALCRIM No. 1120 [elements of continuous sexual abuse] state that CALCRIM
No. 3516 should be given sua sponte if the defendant has been charged with continuous
sexual abuse and a specific sexual offense, it also states, citing Torres, supra, that the
appropriate remedy for failure to do so when the specific sexual offense carries a greater
term is to reverse the conviction for continuous sexual abuse. (Jud. Council of Cal.
Criminal Jury Inst., supra, Bench Notes to CALCRIM No. 1120, p. 944.) Thus, the
Bench Notes for CALCRIM Nos. 1120 and 3516 make clear that a criminal defendant
has a statutory right not to be convicted of both continuous sexual abuse and a specific
sexual offense occurring during the same time period, but does not have a statutory right
to have the jury decide which of those two convictions should be dismissed.
       Defendant’s reliance on Hicks v. Oklahoma (1980) 447 U.S. 343, for a contrary
result is misplaced. In that case, the trial court instructed the jury that it was required to
impose a 40-year sentence, which was contrary to an Oklahoma statue that gave the
defendant the right to have a jury fix his punishment. (Id. at p. 345.) The Hicks court
held that imposing the 40–year sentence violated the defendant’s due process right to
have the jury fix the length of his sentence under the state statute. (Id. at pp. 346–347.)
Hicks is inapposite because in California it is the trial court, not the jury, which selects a
sentence. Section 288.5, subdivision (c) mandates only that the defendant not be
convicted of both continuous sexual abuse and a specific sexual offense occurring during
the same period; it does not mandate that the jury select which offense should be
dismissed.




                                              19
F.     The Restitution Fine

       Defendant contends the trial court erred in imposing a $240 restitution fine
pursuant to section 1202.4, subdivision (b)(1). He argues that the fine imposed violates
ex post facto principles because at the time of the charged offense, the minimum fine was
$200. We find no error.
       Prior to 2011, section 1202.4, subdivision (b)(1) mandated imposition of a
restitution fine of no less than $200 and no more than $10,000, on every person convicted
of a felony, unless the trial court found compelling and extraordinary reasons for not
doing so. A fine in any amount greater than the statutory minimum, and up to the
$10,000 maximum, is subject to the trial court’s discretion. (People v. Avila (2009)
46 Cal.4th 680, 729.) A defendant’s inability to pay is a factor to be considered in
deciding whether to impose an amount in excess of the minimum. (Former § 1202.4,
subds. (c) and (d).) The trial court is not required to make express findings as to the
factors it considers. (Former § 1202.4, subd. (d).) A restitution fine that falls within the
statutory range is not an unauthorized sentence, and a defendant who fails to object to
such a fine forfeits the claim on appeal. (Avila at pp. 728-729.)
       On September 29, 2011, the Governor signed Assembly Bill No. 898, which
increased the minimum mandatory restitution fine to $240 “starting on January 1, 2012
. . . .” (Stats. 2011, ch. 358, § 1.) The statute remained the same in all other material
respects, including subdivisions (c) and (d). The ex post facto clause prohibits legislation
“ ‘which makes more burdensome the punishment for a crime, after its
commission. . . .’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42.) “A restitution fine
qualifies as punishment for purposes of the prohibition against ex post facto laws.”
(People v. Saelee (1995) 35 Cal.App.4th 27, 30.) Thus, where the current version of a
statute provides for a greater restitution fine than the version of that statute in effect at the
time of the defendant’s offense, the ex post facto clause requires the trial court to impose
a restitution fine pursuant to the version of the statute in effect at the time of the
defendant’s offense. (See id. at pp. 30–31.)


                                               20
       Here, defendant was convicted of aggravated sexual assault occurring on or
between July 5, 2007 and August 29, 2011. Accordingly, the prior version of
section 1202.4, subdivision (b)(1) was applicable and the trial court could not impose a
restitution fine of less than $200, or greater than $10,0000. Without defense objection,
the trial court imposed a $240 restitution fine. Because that fine fell within the statutory
range and defendant did not object in the trial court, he has forfeited any claim that the
amount was improper.

                                      DISPOSITION

       Defendant’s conviction for violating section 288.5, subdivision (a) (count 3) is
vacated and the charge is dismissed. In all other respects, the judgment is affirmed.




                                                  RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              FLIER, J.




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