Filed 4/14/16 P. v. Rosses CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066065

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD244467)

FABIAN LAMAR ROSSES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Charles G.

Rogers, Judge. Affirmed.

         Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Randall A. Einhorn and Quisteen

S. Shum, for Plaintiff and Respondent.
                       INTRODUCTION AND BACKGROUND

       A jury found Fabian Lamar Rosses guilty of three counts of sexual penetration of a

child 10 years old or younger (Pen. Code § 288.7, subd. (b); counts 1-3)1 and two counts

of lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 4 & 5). Rosses

committed the offense in count 5 against one minor (victim 1) and the offenses in counts

1 through 4 against another minor (victim 2). The jury also found true multiple victim

enhancement allegations attached to each count. (§ 667.61, subds. (b), (c), (e)(4).) The

court sentenced Rosses to five concurrent terms of 15 years to life, one each for counts 1

through 5.

       Both before and after the trial, Rosses unsuccessfully moved to dismiss count 5

and the multiple victim enhancement allegations. Rosses contends on appeal the trial

court's failure to dismiss count 5 and the multiple victim enhancement allegations

violated his rights to due process and a fair trial. We disagree and affirm the judgment.

                                            A

       Rosses was close friends with a family member of victim 1, so victim 1 knew him

well. When victim 1 was 10 years old he entered Rosses's bedroom, awoke Rosses, and

asked if he could play with Rosses's game console. Rosses agreed and victim 1 lay down

on Rosses's bed to play the video game. Rosses began "playing footsie" with victim 1,

rubbed the back of his thigh, and grabbed his butt. Rosses then grabbed victim 1's penis




1      Unless otherwise noted, all further statutory references are to the Penal Code.
                                             2
and began rubbing it. Victim 1 moved and asked Rosses to stop. Rosses asked if he

could rub victim 1's penis again and victim 1 shook his head no.

       Later that evening, victim 1 reported the incident to his mother, who called the

police. A San Diego police officer responded to the call and interviewed victim 1, victim

1's mother, and, separately, Rosses. The officer prepared a report and forwarded it to

police Detective Donna Williams. Detective Williams interviewed victim 1's mother,

Rosses, Rosses's girlfriend, and victim 1's stepfather. Detective Williams audio recorded

her interviews. The next month a forensic interviewer conducted a videotaped interview

of victim 1.

       Detective Williams submitted the case to the district attorney's office, which

rejected the charges. Detective Williams passed away approximately six years later.

                                              B

       Approximately seven years after the incident with victim 1, Rosses molested a 10-

year-old girl, victim 2. Rosses digitally penetrated victim 2's vagina three separate times

on one occasion and, on a separate occasion, grabbed her vagina and buttocks.2

                                              C

       The People filed a complaint against Rosses, originally charging him only with the

crimes involving victim 2. Within a few months of filing the original complaint, the




2      We omit further details about these offenses from our summary to preserve the
confidentiality of victim 2's identity and because the details are not relevant to the issues
raised on appeal.
                                              3
People amended the complaint to add count 5 for the crime against victim 1 and the

multiple victim enhancement allegations.

       Rosses moved to dismiss the added charge and allegations, arguing the People's

delay in bringing them violated his due process rights. The People opposed the motion

with a declaration stating in part: (1) Detective Williams submitted the case but the

prosecutor rejected the charges; (2) Rosses denied the molestation to several witnesses

and to Detective Williams, there were no percipient witnesses, and the only evidence of

molestation when Detective Williams submitted the case came from victim 1's

statements; and (3) the prosecution provided all 911 calls, field interview reports, forensic

interviews, audio recorded follow-up interviews, and reports of interviews related to

victim 1 to Rosses's counsel. The court deferred ruling on the motion until after the trial.

       At trial, a San Diego police detective testified as to the contents of Detective

Williams's reports. Defense counsel used Detective William's reports and the video of

the forensic interview of victim 1 to point out discrepancies in the testimony of victim 1's

stepfather and victim 1, respectively. The jury convicted Rosses on all counts and found

true the multiple victim enhancement allegations.

       Before sentencing, the court heard argument on the deferred motion to dismiss.

After considering the parties' submissions on the issues and evidence admitted at trial, the

court found the delay in charging Rosses with the additional count related to victim 1 did

not result in substantial prejudice to Rosses and was not negligent or undertaken to gain

an advantage. The court therefore denied the motion to dismiss.



                                              4
                                        DISCUSSION

                       I. Guiding Principles and Standard of Review

       Although a delay in charging a criminal defendant does not implicate the right to a

speedy trial, it may violate the right to a fair trial or to due process of law under the state

and federal Constitutions. (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).)

Thus, a defendant may seek to dismiss a charge based on a delay in prosecution that

occurred before his arrest based on a showing of actual prejudice arising from the delay,

such as from the loss of a material witness or the fading memories of witnesses. (Ibid.;

see People v. Abel (2012) 53 Cal.4th 891, 908 [recognizing a claim of faded memory is

speculative unless the defendant makes an affirmative showing of actual prejudice as a

result]; People v. Hartman (1985) 170 Cal.App.3d 572, 579 (Hartman) [recognizing a

defendant must show actual prejudice based on the facts of the case].)

       In ruling on such a motion to dismiss, the court must balance the harm to the

defendant against the prosecution's justification for the delay. (People v. Nelson (2008)

43 Cal.4th 1242, 1250 (Nelson); People v. Mirenda (2009) 174 Cal.App.4th 1313, 1327

(Mirenda).) Thus, "a minimal showing of prejudice may require dismissal if the

proffered justification for delay is insubstantial. By the same token, the more reasonable

the delay, the more prejudice the defense would have to show to require dismissal."

(People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 915 (Dunn-Gonzalez).) Whether

the defendant was actually prejudiced and whether the delay was justified are questions

of fact. (Mirenda, supra, at p. 1330; Dunn-Gonzalez, supra, at pp. 911-912.) We review



                                               5
the trial court's ruling for abuse of discretion, deferring to any factual findings of the

court supported by substantial evidence. (Cowan, supra, 50 Cal.4th at p. 431.)

                  II. No Prejudice Resulting from Pre-Accusation Delay

       Rosses asserts the delay in charging him with respect to victim 1 prejudiced him

due to: (1) an increase in his potential sentence from the multiple special victim

enhancement allegations; (2) the unavailability of Detective Williams to testify at trial;

(3) the faded memories of witnesses, specifically victim 1 and victim 1's stepfather; (4)

the prosecutor's use of evidence related to victim 1 to bolster the counts related to victim

2; and (5) the prosecutor's use of the delay to bolster the credibility of victim 1. We do

not agree.

                                               A

       First, Rosses did not establish actual prejudice due to an increase in his potential

sentence from the multiple victim enhancement allegations. Counts 1 through 5, along

with the special allegations, exposed him to a potential sentence of five consecutive terms

of 15 years to life, totaling 75 years to life. Had the prosecutor charged Rosses with the

crime against victim 1 in an earlier, separate case, Rosses's potential sentence would have

been eight years as opposed to 15 years to life on that charge. However, if he had been

convicted in that case, his potential sentence for counts 1 through 4 in the present case

would have increased to four consecutive terms of 25 years to life, totaling 100 years to

life. (See § 667.61, subds. (a), (c)(8), & (d)(1).) Therefore, the delay in charging him

actually reduced, not increased, his total potential sentence. Rosses contends he may not

have been convicted of the count relating to victim 1 had he been tried closer to the time

                                               6
of the act or, if he had been convicted, he may not have committed the crimes against

victim 2. These contentions are speculative and insufficient to establish prejudice. (See

People v. Lewis (2015) 234 Cal.App.4th 203, 213.) Further, the potential sentence

increase from the addition of count 5 did not result from a change in law (see Historical

and Statutory Notes, 49 West's Ann. Pen. Code (2010 ed.) foll. § 667.6, pp. 399-402), but

instead from Rosses's own continued criminal activity. In the end, the trial court

sentenced Rosses to five concurrent, not consecutive, terms of 15 years to life.

                                             B

       Second, Rosses did not show actual prejudice as a result of either faded memories

or the loss of Detective Williams as a witness. The loss of a material witness or the

fading memory of witnesses may cause prejudice. (People v. Morris (1988) 46 Cal. 3d 1,

37, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544.)

However, " '[t]he statute of limitations is usually considered the primary guarantee

against bringing overly stale criminal charges.' " (Nelson, supra, 43 Cal.4th at

pp. 1250-1251, quoting People v. Archerd (1970) 3 Cal.3d 615, 639.) Therefore,

merely showing witness memories have faded, without more, is not sufficient to

establish actual prejudice. (Nelson, at pp. 1251-1252.)

       Rosses contends victim 1 changed the details of his testimony between the time of

the incident and trial, but there is no evidence in the record any discrepancies in victim

1's story were due to the time delay or faded memory. An expert on how children

disclose sexual abuse testified children tend to disclose incrementally, remembering more


                                              7
as they talk more about the incident. Victim 1's story differed slightly even from the time

of the preliminary hearing to the trial. Rosses had the opportunity to cross-examine

victim 1 on any alleged discrepancies and the jury could consider them in evaluating

victim 1's credibility. Although Rosses contends defense counsel could not impeach

victim 1's trial testimony because he could not remember speaking with the police officer

after the incident, defense counsel could have used the police reports. In addition, both

the police officer and the forensic examiner were available for cross-examination

regarding their respective interviews with victim 1. The jury saw the entire video of the

forensic interview of victim 1, and defense counsel used the video of the forensic

interview to impeach victim 1.

       Rosses refers to arguments made at trial regarding victim 1's stepfather's inability

to remember if he saw victim 1 in Rosses's room, but the stepfather's memory in this

regard is irrelevant because Rosses admitted victim 1 was in his room on the day in

question. Rosses also points out the stepfather could not recall speaking with the police

officer, but the defense was able to effectively use Detective Williams's reports to

impeach the stepfather on this point.

       With respect to Detective Williams, the defense had all the records of Detective

Williams's work on the case, including audio recordings of her interviews. The trial court

considered the recordings of her interviews better evidence of the interviews than

Detective Williams's recollection would have been and found the admission of otherwise

inadmissible hearsay regarding the content of her reports mitigated any prejudice caused

by her absence at trial. While Rosses contends the defense was somehow unable to

                                             8
impeach victim 1's testimony as a result of Detective Williams's unavailability at trial,

nothing in the record indicates Detective Williams ever interviewed victim 1.

                                               C

       Third, Rosses also did not show actual prejudice as a result of the prosecutor's use

of evidence relating to victim 1 to bolster the case relating to victim 2 and the time gap to

bolster victim 1's credibility. Under Evidence Code section 1108, the trial court had

discretion to admit evidence regarding Rosses's touching of victim 1 during the trial

regarding Rosses's crimes against victim 2 under Evidence Code section 1108, regardless

of whether or not charges related to victim 1 were before the jury. (See People v. Earle

(2009) 172 Cal.App.4th 372, 397 [explaining Evid. Code, § 1108 permits evidence of

similar uncharged sex crimes to demonstrate the defendant's disposition to commit such

crimes].) This obviates the impact of the nine-year delay as the prosecutor could have

used evidence related to victim 1 to bolster the case with respect to victim 2 even absent

the delay.

       With respect to the prosecutor's use of the time gap to bolster victim 1's credibility,

the trial court found the prosecutor's comments did not exceed the scope of counsel's

entitlement to argue all inferences to be drawn from the evidence relevant to credibility.

Both sides made arguments regarding credibility and the court noted "the inability to

recall details works to some extent against both parties." Finally, to the extent the later

offenses with respect to victim 2 provided the jury with corroboration of Rosses's guilt

with respect to victim 1, any prejudice is not the result of the delay, but is, instead, the

result of Rosses's own continued criminal conduct.

                                               9
       Based on the foregoing, we conclude there is substantial evidence to support the

trial court's finding there was no substantial prejudice as a result of the delay in charging

Rosses with count 5.

                                 III. Justification for Delay

       The record here does not clearly establish why charges were not originally filed

against Rosses related to the incident with victim 1. Detective Williams submitted the

case, but the charges were originally rejected, perhaps based on the absence of percipient

witnesses and Rosses's consistent denials of any wrongdoing. Regardless, the prosecutor

was under no obligation to file charges unless he or she was satisfied guilt was provable

beyond a reasonable doubt. (Cowan, supra, 50 Cal.4th at p. 435; Mirenda, supra, 174

Cal.App.4th at p. 1329, quoting People v. Boysen (2007) 165 Cal.App.4th 761, 777.) We

do not second-guess the prosecutor's decision whether to file charges. (See Nelson,

supra, 43 Cal.4th at p. 1256.) The prosecutor filed the charge relating to victim 1 after

victim 2 came forward specifically because victim 2's allegations convinced the

prosecutor the case against Rosses with respect to victim 1 could be proved to a jury

beyond a reasonable doubt. Although the prosecution may have used the time gap to

bolster victim 1's credibility, the record as a whole does not support the conclusion the

prosecution delayed filing charges related to victim 1 for the purpose of gaining a tactical

advantage. Substantial evidence supports the court's finding the delay in this regard was

neither negligent nor undertaken to gain an advantage.

       In making the ruling, the trial court correctly explained "Section 1108 evidence is

additional evidence. It is character evidence that the law has recognized is appropriate in

                                             10
these kinds of cases." Allegations of a second, similar crime may lend credibility to

previous accusations, causing the prosecutor to feel confident in charging the defendant

with respect to the earlier offense and may, therefore, provide justification for a

preaccusation delay with respect to the earlier crime. (See People v. New (2008) 163

Cal.App.4th 442, 466 (New) [32 year delay in charging defendant with wife's murder was

reasonable based on finding there was not a prosecutable case regarding the original

murder until third wife died in a similar manner]3; see also Nelson, supra, 43 Cal.4th at

pp. 1256-1257 [new evidence in the form of a cold hit on a fingerprint was justification

outweighing any prejudice as a result of charges for a 1976 murder being brought in

2002]; People v. Catlin (2001) 26 Cal.4th 81, 109-110 [nine-year delay in murder charges

justified where it would have been extremely difficult or impossible to make out a case

against defendant until additional evidence of his guilt in the form of similar poisonings

of two more persons emerged].)

       Rosses incorrectly relies on People v. Pellegrino (1978) 86 Cal.App.3d 776

(Pellegrino) and Hartman, supra, 170 Cal.App.3d 572. The court in Pellegrino upheld

the trial court's dismissal based on a pre-accusation delay resulting from a lack of interest

in prosecuting the original offense but did not address whether new, admissible evidence

of similar criminal conduct could be sufficient justification for a delay. (Pellegrino,


3      Rosses argues to the extent New supports the proposition propensity evidence of
another unrelated criminal allegation can justify a lengthy prearrest delay, it makes new
law and is wrongly decided. We disagree. The other criminal allegations in New, as in
the present case, are additional relevant evidence with respect to the prior allegations
because they relate to a similar crime conducted in a similar manner. (New, supra, 163
Cal.App.4th at p. 466.)
                                             11
supra, 86 Cal.App.3d at p. 781.) The court in Hartman found no justification for delay

where the People waited an additional five and a half years after obtaining new evidence

to file a murder charge. (Hartman, supra, 170 Cal.App.3d at p. 582.) Here, there was no

such postdiscovery delay.

       For the reasons stated above, we conclude there is substantial evidence to support

the trial court's findings Rosses did not suffer substantial prejudice and the delay was

neither negligent nor undertaken to gain an advantage. Accordingly, we conclude the

trial court did not abuse its discretion in denying Rosses's motion to dismiss.

                                      DISPOSITION

       The judgment is affirmed.



                                                                       MCCONNELL, P. J.

WE CONCUR:


HALLER, J.


MCINTYRE, J.




                                             12
