Filed 7/26/13 P. v. Rideaux CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063216
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F09901856)
                   v.

DYONDRE RIDEAUX,                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Appellant Dyondre Rideaux was charged by the Fresno County District Attorney
with the crimes of (1) continuous sexual abuse of a child under the age of 14 years from
January 2, 2008 through March 21, 2009 (Pen. Code, § 288.5, count 1),1 (2) committing a
lewd act on a child on or about January 1, 2008 (§ 288, subd. (a), count 2), and
(3) committing a lewd act on a child on or about March 23, 2009 (§ 288, subd. (a),
count 3). At trial, the jury heard substantial evidence that appellant had repeatedly
sexually molested Natasha. Natasha was 10 years old at the time the incidents began and
appellant was 39 years old. Appellant took the stand on his own behalf and claimed that
Natasha was the sexual aggressor and he was merely a passive victim, adding that he
believed Natasha‟s mother had been prostituting Natasha. The jury found appellant
guilty as charged on all counts, and the trial court thereafter sentenced him to a total of 20
years in state prison. Appellant appeals on the grounds that the trial court erred in
excluding certain evidence and inadequately instructing the jury on the time parameters
of the three counts. We find both arguments unavailing and affirm the judgment.
                       FACTS AND PROCEDURAL HISTORY
A.     Prosecution‟s Case
       In October 2007, appellant began residing at the home of Natasha‟s mother, whom
we shall refer to as Diana D. At that time, Diana D. had two daughters living at home
with her, nine-year-old Natasha and 16-year-old M. Diana D. also had two sons, Robin
and Damien, from a prior relationship with appellant‟s father. When appellant moved in,
the following people lived in Diana D.‟s house: Diana D., her boyfriend Clarence (not
appellant‟s father), Natasha, M., and Damien (appellant‟s half-brother). Clarence and
Damien moved out sometime in 2008. Diana D. permitted appellant to sleep on the floor
in Natasha‟s bedroom for almost a year. Sometimes Natasha would sleep with Diana D.


1      Unless otherwise indicated, all further statutory references are to the Penal Code.



                                              2.
Less frequently, appellant would enter Diana D.‟s bedroom and sleep in Diana D.‟s bed
with both Diana D. and Natasha.
       The First Act of Molestation—January 1, 2008
       On January 1, 2008, Diana D. looked through Natasha‟s door early in the morning
and saw appellant and Natasha on the bed together in Natasha‟s room. Appellant was
lying down under the covers and Natasha was sitting near his feet, naked from the waist
down. Diana D. quickly summoned Natasha into the bathroom and asked her what was
going on. Natasha said that she “wanted to see how it felt.” She also stated that appellant
“put his mouth there.” Natasha then cried and told Diana D. she was scared Diana D.
would “lose [them].” Diana D. later confronted appellant about “what the hell [was]
going on,” and appellant responded that he would not do anything “like that” to Natasha
or do anything to hurt her. He said he was sorry that he may have gotten a little too close.
Diana D. did not call the police out of fear that her children would be taken from her by
Child Protective Services.
       Continuous Sexual Abuse from January 2, 2008, through March 22, 2009
       In Natatsha‟s 2009 interview at the Multi-Disciplinary Interview Center (MDIC),
which was played for the jury, as well as in her testimony at the time of trial, she
described what appellant had done to her.2 She said it was “scary how long [the
molestations] happened.” Appellant touched her inappropriately in Damien‟s room (after
Damien had moved out), Natasha‟s room, and Diana D.‟s room.
       Appellant would grab Natasha from behind and pull her against his body; she tried
to pull away but he always trapped her in tight. Appellant would put his hand down
Natasha‟s pants and touch her “below parts.” When this happened, she was too afraid to
say anything. He touched her down there “a lot of times,” more than five times, and he

2      The jury also heard what Natasha told others, such as an investigating police
officer (Officer Vilai Douangmala) and Diana D., about the acts of molestation.



                                             3.
had been doing this to her for so long it was “scary.” Natasha was shown a diagram of a
girl and identified what she meant by “below parts” as her vagina. Natasha also told the
interviewer that appellant also would “try to stick his thing up in me, but I would try to
get away, and then he‟d pull me back.” On a diagram, she identified that his “thing” was
his penis. At least five different times, appellant pulled down Natasha‟s underwear and
rubbed his penis against her bare bottom. Sometimes “slimy stuff” would come out.
Sometimes he would also put his penis or finger in her “butthole” or between her “butt
cheeks.” When appellant ejaculated it disgusted Natasha so much that she nearly
vomited. She said appellant tried to stick his penis in her vagina but he never succeeded.
On more than three occasions, appellant forced Natasha to hold his penis with her hands.
She would try to pull away but he would grab her hand and make her rub it until he
ejaculated. Appellant also had Natasha “put [her] mouth on [appellant‟s] penis” at least
“[a] couple” times and he ejaculated.
       According to Natasha, appellant warned her not to tell what he was doing to her,
and one time she lied about it and told her mother that she had come on to appellant. But
it was “killing [her] inside,” so she finally told her mother the truth.
       Final Act of Molestation—March 23, 2009
       On March 23, 2009, early in the morning, Diana D. was awakened when Natasha
kicked her. There had also been some moaning sounds. When Diana D. was fully
awake, she turned over and saw that appellant was in the bed on the other side of
Natasha, pressed up against Natasha. Diana D. pulled back the covers and saw that
Natasha‟s pants and underwear were pulled down exposing her buttocks. Natasha was
sound asleep. Diana D. demanded that appellant “get the F out” of her room and leave
the house. Appellant said he did not do anything and was just checking her to see if she
was wet. Appellant asked, “[A]re you gonna call the police in?” and she said she did not
know. Diana D. then woke up Natasha and told her to clean herself up with a baby wipe.
Natasha then went to school. Later, Diana D. told appellant that her daughter‟s pants did

                                              4.
not come down by themselves. She informed appellant that she was going to talk to
Damien and the police. Appellant then left the house.
       Appellant’s MDIC Police Interview
       Later that night, after appellant saw that a police car was parked in front of
Diana D.‟s house, he walked to a nearby police substation and asked to speak to someone
about the allegations that others had made against him. Officers Jose Jauregui and
Christine Gray eventually met with appellant, read him his Miranda3 rights and
interviewed him at length. The interview was recorded and the recording was played to
the jury. The jury was also provided a transcript.
       In the interview, appellant stated he believed that Diana D. was “pimping” her
daughter, Natasha, into prostitution and he recently confronted Diana D. about it. He
suggested the family was now accusing him of molestation because he had confronted
Diana D. about pimping Natasha. Appellant said he had observed Natasha make sexual
gestures to grown men. He added that when she played with Barbie dolls, she would say
things like she wanted “a big thing” and had one doll say to another one, “suck it[,] suck
it.” He mentioned, as evidence of Diana D.‟s mindset toward Natasha, that Diana D.
“played with” appellant‟s penis while Natasha was present.4 When appellant directly
challenged Diana D. about pimping Natasha, she denied it and said he was crazy.
       The police then asked appellant about his own conduct concerning Natasha.
Appellant claimed that Natasha was “touchy feely,” aggressively “fast” and would sit in
his lap and grab him in the crotch. (Frequently, he would wake up in bed and she would
be there holding his penis. He admitted that he did not stop her the way he should have


3      Miranda v. Arizona (1966) 384 U.S. 436.
4     Diana D. admitted she “hand jobbed” appellant once. She did not think Natasha
was present at the time, but she could not remember. At trial, appellant testified that
Natasha was present but “sleeping” at the time this occurred.



                                             5.
when she rubbed his penis and, although he ejaculated, he was not “fully aware.”
Speaking of oral copulation, he said Natasha may have done that to him also while he
was sleeping. He admitted that his penis had been in her mouth, but “not purposely”
since he was sleeping. He said that Natasha orally copulated him at least twice, both
times in Diana D.‟s bed, with Diana D. present. He later denied that the acts of oral
copulation happened over 20 times, stressing it was fewer than five times and it occurred
in Natasha‟s room also. Appellant insisted he was not participating intentionally in these
acts, but rather Natasha was doing these things to him and he was always a victim.
B.     Defense Case
       Appellant’s Trial Testimony
       Appellant testified at trial, making similar claims to the ones he told the police in
his MDIC interview. He said he knew for a fact that prostitution was going on because of
various things he saw and heard. He testified of an incident at the laundromat. While at
the laundromat, Diana D. asked appellant to go buy a beer at a nearby store. Appellant
thought that was odd and he suspected that Diana D. was trying to get him out of the way.
When appellant returned, he saw Natasha on her knees in the Laundromat office.
Natasha got up quickly like she was hiding. A man also exited the office. Natasha went
outside and started throwing up. Appellant said he later overhead a conversation between
Diana D. and Damien in which Damien asked, “well, how fast—how fast did she do it?”
       Appellant testified that he saw Natasha make sexual gestures to men, including a
gesture like putting a penis in her mouth. He saw Natasha acting like she was giving out
her phone number to men. Appellant also noted that Natasha‟s vocabulary had changed,
and she started to say “pimp” this and “ho” that, and he also observed Natasha acting out
sexually with her dolls. Appellant overheard Diana D. tell one of M.‟s boyfriends that
Natasha was a “whore.”
       Appellant testified that more than once, he walked into Diana D.‟s room and found
Diana D. and Natasha in “compromising positions.” He claimed that M. was also

                                             6.
involved in teaching Natasha things of a sexual nature. Allegedly, M. would talk about
sex, including oral sex, in front of Natasha. M. would often have boyfriends over. On
those occasions, Natasha would sit in the boys‟ laps and grab them. He testified that one
time, M.‟s bedroom door was locked and he pounded on the door because he knew
something was happening, and when the door was opened, there was Natasha on her
knees with her face near one boy‟s crotch.
       Appellant said Diana D. tried to get appellant to have sex with her (Diana D.).
Appellant was not interested and told Diana D. he could not get an erection. One day
Diana D. just grabbed him and said, “well, let me see.” Natasha was asleep in the room
at the time.
       Appellant testified that on March 23, 2009, he had a serious argument with
Diana D. as he confronted her again about prostituting Natasha. Appellant was so angry
with Diana D. he told her that “somebody should blow her head off.” Appellant told
Diana D. at that time that he knew Natasha was “prostituting orally,” but because of the
strange way Natasha was walking he thought Diana D. now “had her doing vaginal
prostituting.” Appellant rubbed on Natasha‟s vagina to find out if he could “smell sex”
on her. It was after this confrontation that the accusations of molestation were made
against him.
       As to his own conduct toward Natasha, appellant testified that Natasha was
“touchy feely” and “sexually aggressive.” She would grab his crotch over his clothes.
Sometimes he would wake up in bed and find her holding his penis in her hand or
rubbing him. He did not deny what he had told the police previously about occurrences
of oral copulation, but indicated it was while he was sleeping. Appellant said he did not
try to stop the sexual behavior because he was trying to bust Diana D. for what she was
doing. He reiterated that Natasha was always the one doing it to him, coming on to him,
and he was the victim.



                                             7.
          Other Evidence
          Ryan Carter, a crime scene technician for the City of Fresno, testified that he
tested the bedrooms and bedding in Diana D.‟s home for physiological evidence such as
seminal fluid, blood, and urine. He used an ultraviolet light source as the means of
detecting such physiological substances. He found none in the bedrooms at Diana D.‟s
home.
          Officer Thaoseng Xiong of the Fresno Police Department received a call that there
was an incident of possible physical or sexual abuse of Natasha at a local library. A
woman, Maria Ortiz, had observed the incident between appellant and Natasha. She saw
Natasha bending over trying to get her bicycle and appellant was standing right behind
her while she bent over. The situation appeared suspicious to Ms. Ortiz. Officer Xiong,
of the child abuse unit, was sent to Natasha‟s school to investigate the report of possible
abuse. After speaking with Natasha, he concluded there was no evidence that abuse had
occurred at the library. Natasha told Officer Xiong that she liked appellant very much
and he had never abused her.
Natasha acting out sex acts with her dolls.
C.        Verdict and Sentence
          On July 20, 2011, the jury reached a verdict. It found appellant guilty as charged
on all three counts. On August 29, 2001, appellant was sentenced to a total prison term
of 20 years. Appellant timely appealed.
                                         DISCUSSION
I.        Exclusion of Evidence
          Appellant‟s first argument is that his conviction must be reversed because the trial
court excluded certain testimony regarding a lollipop incident that occurred between
Natasha and M. We disagree.
          We begin with a brief synopsis of the evidence and the basis for the trial court‟s
ruling.     Appellant‟s trial counsel asked Natasha‟s foster mother, L.B., whether she

                                                8.
recalled “indicating to [a] Mr. Rubio that [M.] was playing with a lollipop at some point
with Natasha[.]”    Ms. B. replied in the affirmative, but clarified that she did not
personally witness the lollipop incident in question; rather, Natasha had told her about it.
Counsel for the prosecution then objected that the testimony was hearsay. The trial court
asked appellant‟s counsel if there was any applicable hearsay exception, and counsel
replied, “I‟m wondering if it‟s [a] prior inconsistent statement, but I can‟t recall exactly
what her statements were.” At that point, the trial court held a conference with counsel
off the record.
       While the jury was outside the courtroom, the trial court placed onto the record the
content of the discussions that occurred off-the-record, as follows:

              “THE COURT: I want to protect the record for your sake, [defense
       counsel]. There was a discussion we had at side bar during the cross-
       examination of Ms. [B.] in which you sought to ask her about an incident
       relating to a lollipop, I guess is about the way I‟ll describe it. And you
       shared a statement in writing as to what you understood that Ms. [B.] had
       said. And I concluded that it was not within the prior inconsistent
       statement exception to the hearsay rule. So if you want to make a record—

              “[DEFENSE COUNSEL]: If I could read the statement that I have.

              “THE COURT: Okay.

             “[DEFENSE COUNSEL]: [Ms. B.] remembers having a
       conversation with Carter, who is a social worker incidentally, where she
       mentioned [M.] using a lollipop to try to show Natasha how to perform oral
       sex. She said it was not in the reports.

               “THE COURT: Okay. And—okay. I guess having had that
       clarification now, it seems to me there‟s probably more objections to be
       said as to hearsay. It appeared to the court that you were going to attempt
       to have this witness, Ms. [B.], testify as to what Natasha had to say about
       that incident, right?

              “[DEFENSE COUNSEL]: Um, I don‟t think Natasha was really
       going to say that. I think—

              “THE COURT: How would this not be completely hearsay?


                                             9.
              “[DEFENSE COUNSEL]: I think it‟s what she saw.

              “THE COURT: What who saw?

             “[DEFENSE COUNSEL]: I think [Ms. B.] seems to have seen
       something like this or had a conversation with Carter who is the social
       worker.

              “THE COURT: I‟ll let you go back and look at the court reporter‟s
       record here, sir. But there was nothing about her response that suggested
       she was—had seen anything. I believe she started to say Natasha told me,
       which is where [the prosecutor] objected on the grounds of hearsay. And I
       asked you if there was some exception[.] You suggested it might be a prior
       inconsistent statement. And because Natasha had never been asked about
       the subject of conversations with [M.] at any time after she left the home
       with CPS, it was the court‟s view that there was no prior inconsistent
       statement about lollipops at all. And so did you have some theory that you
       want to make a record of that somehow Natasha talked about [M.] and
       lollipops in her testimony[?]

              “[DEFENSE COUNSEL]: No, your honor.

             “THE COURT: Okay. Like I said, I don‟t believe that there‟s any
       evidence to suggest that [Ms. B.] saw anything about that.”
       Appellant argues the trial court erred in excluding Ms. B.‟s testimony about what
Natasha told her concerning the lollipop incident. He claims that the testimony was
admissible, not so much for its truth, but as circumstantial evidence of Natasha‟s state of
mind. (See, e.g., People v. Cox (2003) 30 Cal.4th 916, 962 [exception to hearsay rule for
circumstantial evidence of state of mind]; People v. Turner (1994) 8 Cal.4th 137, 189
[out-of-court statement may be admitted for a nonhearsay purpose].) As explained in
People v. Ortiz (1995) 38 Cal.App.4th 377: “[A] statement which does not directly
declare a mental state, but is merely circumstantial evidence of that state of mind, is not
hearsay. It is not received for the truth of the matter stated, but rather whether the
statement is true or not, the fact such statement was made is relevant to a determination
of the declarant‟s state of mind.” (Id. at p. 389.) According to appellant, the evidence
was relevant to show that Natasha was in a “sexualized” state of mind that originated



                                             10.
with and was taught by M.—not appellant—which fact would arguably support his
contention that Natasha initiated the oral sex and he was the victim. Appellant‟s appeal
further stated: “Natasha‟s statements were relevant to explain her state of mind and to
explain her acts or conduct. Having been instructed on how to perform oral sex by her
sister … explained Natasha‟s performing oral sex on appellant as he slept.”
       The fatal flaw in appellant‟s argument on appeal is that he never presented this
theory of admissibility below. In the trial court, it was not even remotely suggested that
the evidence was admissible on the ground that it tended to circumstantially show
Natasha‟s state of mind. Rather, the evidence was being offered for the truth of the
matter, and when the trial court asked appellant‟s counsel to specify a hearsay exception,
the only basis offered for potential admissibility was that the testimony might be a prior
inconsistent statement—which the trial court properly rejected. The proponent of hearsay
has the burden to alert the trial court to the exception or ground for admissibility that is
being relied upon. (People v. Livaditis (1992) 2 Cal.4th 759, 778.) Here, since appellant
did not present the “state of mind” theory of admissibility in the trial court, that issue is
not cognizable on appeal. (People v. Ervine (2009) 47 Cal.4th 745, 779; People v. Smith
(2003) 30 Cal.4th 581, 629-630; Evid. Code, § 354.) Accordingly, appellant‟s claim of
error is forfeited.
       Even if appellant had preserved the issue for appeal, no reversible error is
apparent. A trial court‟s rulings on the admissibility of evidence are reviewed under the
abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) “[A]n
appellate court applies the abuse of discretion standard of review to any ruling by a trial
court on the admissibility of evidence, including one that turns on the hearsay nature of
the evidence in question [citations].” (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Here, there were no foundational facts in the trial court below to indicate when the
lollipop incident may have occurred. Appellant concedes in his reply brief that if the
lollipop incident occurred after appellant‟s arrest, it would have been irrelevant. “An

                                              11.
appellate court may not reverse a judgment because of the erroneous exclusion of
evidence unless the „substance, purpose, and relevance of the excluded evidence was
made known to the court by the questions asked, an offer of proof, or by any other
means.‟ [Citations.]” (People v. Livaditis, supra, 2 Cal.4th at p. 778, citing Evid. Code,
§ 354, subd. (a).) Since there was no evidence regarding when the lollipop incident may
have occurred, key foundational facts of admissibility (relevance) were lacking.
Accordingly, even if the issue had been adequately preserved for appeal, no clear abuse
of discretion is shown.
       Finally, even if the trial court erred in excluding the evidence, the error was not
prejudicial. The evidence that appellant perpetrated multiple acts of sexual molestation
against Natasha was substantial, detailed and virtually overwhelming, including the
testimony of Diana D. (as to counts 2 and 3) and the 2009 MDIC interview of Natasha (as
to count 1). On this record, even if evidence of the lollipop incident had been admitted at
trial, there is no reasonable possibility that the jury would have returned a more favorable
verdict (People v. Watson (1956) 46 Cal.2d 818, 836), or been persuaded by appellant‟s
theory that Natasha, a 10-year-old girl, repeatedly sexually molested appellant and that
he, a 39-year-old man, was merely a nonparticipating, passive victim.5
II.    Jury Instruction
       Appellant contends the trial court erred in instructing the jury with a modified
version of CALCRIM No. 207 because, allegedly, the instruction did not adequately
clarify that the time frame and acts in counts 2 and 3 had to be distinct from those in
count 1. The People argue that the issue has been forfeited under the doctrine of invited




5      To the extent that appellant‟s purported defense bordered on “consent” or
“willingness” on the part of the victim, we note there is no such defense to the crimes
appellant was charged with. (People v. Soto (2011) 51 Cal.4th 229, 238, 248.)



                                             12.
error, but that in any event the instruction was adequate. The People are correct on both
points.
          Preliminarily, we find the People are correct that appellant forfeited this issue
since he not only failed to object or to request a clarified instruction, but also by
affirmatively approving the instruction when the trial court suggested the particular
wording. “Because defendant expressly agreed to this instruction, he is barred from
challenging it on appeal under the doctrine of invited error.” (People v. Davis (2005) 36
Cal.4th 510, 539.) Although, in this context, application of the doctrine of invited error
requires there be some tactical purpose apparent in appellant‟s agreement or acquiescence
in the particular jury instruction (People v. Tate (2010) 49 Cal.4th 635, 695, fn. 32), here
that tactical purpose is evident: appellant sought to ensure the instruction more fully and
specifically elaborated the segregation of the time periods and acts of the three distinct
counts. Additionally, where (as here) the instruction was legally adequate but potentially
could have been drafted with greater specificity, “a defendant‟s failure to request a
clarification instruction forfeits that claim on appeal.” (People v. Young (2005) 34
Cal.4th 1149, 1202; see also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
For all of these reasons, appellant forfeited this issue.
          In any event, the instruction was adequate in stating the applicable law and would
not have misled the jury. If a jury instruction is arguably ambiguous, “„we inquire
whether there is a reasonable likelihood that the jury misunderstood and misapplied the
instruction.‟ [Citations.] … The reviewing court also must consider the arguments of
counsel in assessing the probable impact of the instruction on the jury.” (People v.
Young, supra, 34 Cal.4th at p. 1202.) “A defendant challenging an instruction as being
subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood
that the jury understood the instruction in the way asserted by the defendant.” (People v.
Cross (2008) 45 Cal.4th 58, 67-68.) “„“Jurors are presumed to be intelligent, capable of



                                                13.
understanding instructions and applying them to the facts of the case.”‟ [Citations.]”
(People v. Carey (2007) 41 Cal.4th 109, 130.)
       Here, the trial court instructed the jury using a modified version of CALCRIM
No. 207, as follows: “It is alleged in Counts Two and Three that the crimes occurred on
or about January 1, 2008 and March 23, 2009, respectively. The People are not required
to prove that the crimes took place exactly on those days but only that they happened
reasonably close to those days. However, the lewd acts alleged in Counts Two and Three
are not included in the period from January 2, 2008 to March 21, 2009 alleged in
Count One.”6 (Italics added.) The modified instruction was the result of discussions
between counsel and the trial court, and the wording was substantially the same as an
instruction submitted earlier by appellant‟s counsel. The precise wording of the modified
instruction was suggested by the trial court and expressly agreed to by both counsel.
Appellant‟s counsel stated, “[the] Defense is satisfied.”
       The reason for the modified instruction regarding the acts and timing of the three
counts was to ensure compliance with the holding of People v. Johnson (2002) 28 Cal.4th
240 (Johnson). In that case, the Supreme Court explained that certain limitations were
imposed by the Legislature under section 288.5 relating to the crime of continuous sexual
abuse of a child: “In a prosecution under the statute, the trier of fact need unanimously
agree only that the requisite number of specified sexual acts occurred, not which acts
constituted the requisite number. [Citation.] The statute, however, imposes certain limits
on the prosecution‟s power to charge both continuous sexual abuse and specific sexual
offenses in the same proceeding.… „[N]o other felony sex offense involving the same
victim may be charged in the same proceeding with a charge under this section unless the



6      The last sentence (the italicized wording) was added to what would otherwise be a
standard CALCRIM No. 207 instruction.



                                            14.
other charged offense occurred outside the time period charged under this section or the
other offense is charged in the alternative.‟ [Citation.]” (Id. at p. 243.)
       The Supreme Court concluded its discussion of section 288.5 by emphasizing that
“[p]rosecutors in sexual abuse cases possess a variety of means to seek convictions and
severe punishments in cases involving sexual offenses against vulnerable young victims.”
(Johnson, supra, 28 Cal.4th at p. 248.) For example, prosecutors may “charge
continuous sexual abuse and discrete sexual offenses outside the period of the alleged
continuous abuse [citation] .…” (Ibid.) They also may charge a defendant with discrete
sexual offenses and continuous sexual abuse within the same time period, as long as the
charges are in the alternative. (Ibid.) However, because section 288.5 “clearly mandates
the charging of continuous sexual abuse and specific sexual offenses, pertaining to the
same victim over the same period of time, only in the alternative, they may not obtain
multiple convictions in the latter circumstance.” (Johnson, supra, at p. 248, italics
added.) If multiple convictions are obtained in violation of section 288.5—that is, if the
specific sexual offenses occurred within the same time period as the continuous sexual
abuse—“either the continuous abuse conviction or the convictions on the specific
offenses must be vacated.” (Johnson, supra, at p. 245; see also People v. Bautista (2005)
129 Cal.App.4th 1431, 1436.)
       Appellant was charged in count 1 of the second amended information with
continuous sexual abuse from January 2, 2008 through March 21, 2009. Count 2 alleged
a lewd act on January 1, 2008; and count 3 alleged a lewd act on March 23, 2009. Thus,
the allegations did not overlap the time period of the continuous sexual abuse with the
specific offenses. Likewise, the jury instruction specifically informed the jury that the
lewd acts alleged in counts 2 and 3 “[were] not included in the period from January 2,
2008 to March 21, 2009 alleged in Count One.” Because the instruction made clear that
counts 2 and 3 were outside the time period applicable to count 1, it appears that the jury



                                             15.
would have reasonably understood how to segregate the counts and time periods in
accordance with the principles set forth in Johnson, supra, 28 Cal.4th 240.
         Moreover, in closing argument, the prosecutor further clarified the matter. In
discussing count 1, he stated that while appellant “certainly” committed more than three
sexual acts, “we‟re focusing just on acts separated from Counts Two and Three, which
are the January 1st, 2008, event and the March 23, 2009 [event].” In similar fashion,
appellant‟s trial counsel argued in closing argument: “[L]et‟s be very careful with these
charges. Three separate counts. One happened January 1st, 2008; one happened March
23, 2009; and there‟s this middle count that kind of encompasses continuing sexual
abuse. The March date and the January date are not part of the continuing sexual abuse.
They are separate.” Finally, the parties were careful to include the specific dates
applicable to each count on the verdict forms, and the prosecutor brought the forms to the
jury‟s attention, saying “[w]e have the dates down there so there will be no confusion.”
         We conclude the trial court‟s instruction was reasonable clear and adequate to
ensure that the jury would comply with the principles of Johnson, supra, 28 Cal.4th 240.
Additionally, even if there was any potential ambiguity, the closing arguments of counsel
and the verdict forms plainly rectified it. Appellant has failed to show any instructional
error.




                                             16.
                                 DISPOSITION
     The judgment is affirmed.


                                               _____________________
                                                              Kane, J.
WE CONCUR:


_____________________
Wiseman, Acting P.J.


 _____________________
Cornell, J.




                                     17.
