Filed 4/28/16 P. v. Croft CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051591

         v.                                                            (Super. Ct. No. 13NF0774)

JAMES CROFT,                                                           OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed.
                   Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for
Plaintiff and Respondent.
              James Croft appeals from a judgment after a jury convicted him of four
counts of lewd act upon a child under 14 years of age and found true multiple victim and
substantial sexual conduct enhancements. Croft raises numerous evidentiary,
instructional, and sentencing errors. Although we conclude one of the evidentiary claims
has merit, Croft was not prejudiced. None of his other contentions have merit. We
affirm the judgment.
                                         FACTS
Background
              Croft and T.C. (Mother), married in 1993, and had three children together:
a son, D.C., born in 1994, and two daughters, M.C., born in 1995, and A.C., born in
1998. Croft, Mother, and the children lived in Texas. D.B., T.M., and their daughter
N.B., who was born in March 1996, lived with them. Croft and Mother were N.B.’s
godparents. Croft, Mother, and the children moved to Buena Park in 2000; Croft moved
in early 2000, and Mother and the children moved in May 2000. While Mother worked,
Croft would watch the children. M.C. could not start kindergarten in September 2000,
because she turned five years old a few weeks after school started. In September 2001,
M.C. turned six years old and attended kindergarten at P.E.1
M.C.
              On one occasion, Croft picked up M.C. from kindergarten, took her to the
Rite Aid where he worked to buy her “hot Cheetos,” and took her home where they were
alone. Croft took M.C. into his bedroom, took off her clothes, put her face down on the
bed with her face buried in a pillow, and told her that she was in trouble. M.C. heard
Croft unfasten his belt, unzip the zipper, and drop his pants where they rested around his
ankles. Croft stood at the end of the bed and held M.C.’s buttocks in the air. Croft put


1             The Attorney General states M.C. turned five years old in 2001. M.C. was
born in September 1995 and turned five years old in September 2000. She turned six
years old and started kindergarten in September 2001.

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his cold penis inside M.C.’s “butt” and moved it in and out. M.C. cried, screamed, and
told him to stop, but her face was buried in the pillow. M.C. did not know whether Croft
ejaculated, but after he stopped, he wiped her off with a towel and told her to leave.
Croft sodomized M.C. in this manner on more than one occasion during M.C.’s
kindergarten year.
              On another occasion during her kindergarten year when Mother was at
work, Croft put all the children to bed and told M.C., who was in her nightgown, to count
to 100 and come into his bedroom. M.C. pretended to be asleep, and Croft returned to
her bedroom, woke her up, took her into his bedroom, and took off her nightgown. Croft
put her in the same position and sodomized her. After he finished, Croft told M.C. to
sleep with him that night and if Mother asked to tell Mother that she wanted to watch
television.
              During Christmas 2001, Croft and the children were decorating the tree.
Croft told M.C. to come into his bedroom because she was in trouble. After Croft took
off M.C.’s clothing and told M.C. to get on the bed, family arrived. Croft told M.C. to
get dressed quickly, and he left the bedroom.
              On two other occasions, Croft had M.C. lay on the bed on her back with a
pillow over her face. He tried to put his penis in her vagina but when M.C. screamed he
stopped. M.C. did not tell anyone what happened because she was afraid of Croft.
A.C.
              A.C. was two years old when the family moved to California in May 2000.
Croft watched A.C. during the day when Mother worked and her siblings were at school.
On one occasion in 2001, Croft told three-year-old A.C. to come into his bedroom. He
told her to take off her clothes and to get onto the bed. He told her to get on her knees
and put her face on a pillow so her buttocks was in the air. He spread lubricant on A.C.’s
buttocks, which felt cold. Croft put his penis in her anus and moved back and forth.
A.C. cried. When he was done, Croft told A.C. to get dressed and leave. A.C. did not

                                             3
tell Mother because she was scared. A.C. stated Croft sodomized her “a lot” when they
were home alone during 2001 and 2002.
Aftermath
              In May 2002, when M.C. was in kindergarten, Mother separated from
Croft. He moved to Texas and soon moved in with M.M. and they had a daughter. Croft
returned to Orange County on two occasions. In 2003, Croft stayed with Mother and the
children for a week. On another occasion, Croft flew to Orange County and he and the
children took a bus to Texas. The following year, the children were scheduled to fly to
Texas. At the airport, M.C. became hysterical and refused to go; D.C. and A.C. went.
              In 2008, N.B. was in sixth grade and took a sexual education class where
she learned about sexual assault and that the victim was not to blame. N.B., who was
living with her aunt and uncle in Texas because her mother, T.M., was stationed out of
state, told her aunt that Croft had molested her. N.B.’s aunt took N.B. to the police
station, where officers and the child abuse services team (CAST) interviewed her. A day
or two later N.B. told T.M. that Croft molested her. When T.M. was deployed overseas
in Afghanistan, she e-mailed Mother and told her that N.B. reported Croft had molested
her. Mother spoke with her three children in a group and asked them if anyone had
touched them inappropriately. The children said, “No.” M.C. was afraid to tell Mother
what Croft had done.
              One day in March 2011, Mother picked up 15-year-old M.C. and 13-year-
old A.C. from school. M.C.’s grades were subpar, and A.C. was acting out at school.
Mother asked them why they did not behave for her like they behaved for Croft. When
neither responded, Mother threatened to send them to Texas to live with Croft. M.C.
cried hysterically. Mother sent A.C. inside the house. M.C. told Mother that Croft had
raped her while they lived in Buena Park. The next morning Mother asked A.C. if
anyone had touched her. A.C. told Mother that Croft had molested her. After Mother



                                             4
took them to see a doctor, she took them to the police department. M.C. wanted to talk to
police because she was concerned for her half-sister who lived with Croft in Texas.
              CAST social worker Adriana Ball interviewed M.C. and A.C. in April
2011, 10 years after the incidents. The interviews were recorded.
              At the police station a couple months later, M.C. made a covert telephone
call to Croft. The call was recorded and later played for the jury at trial. Croft denied
touching M.C. inappropriately and apologized that she was “hurting” but stated he could
not apologize for something he did not remember doing.
Trial Court Proceedings
              An information charged Croft with two counts of committing a lewd act on
M.C. (Pen. Code, § 288, subd. (a)—counts 1 & 2), and two counts of committing a lewd
act on A.C. (Pen. Code, § 288, subd. (a)—counts 3 & 4). As to all counts, the
information alleged multiple victim (Pen. Code, § 667.61, subds. (b), (c) & (e)(5)), and
substantial sexual contact with a minor (Pen. Code, § 1203.066, subd. (a)(8)),
enhancements.
              Before trial, the prosecution filed a trial brief. As relevant here, the
prosecution sought to admit expert testimony regarding child sexual abuse
accommodation syndrome (CSAAS). The prosecution also sought to admit prior sexual
offense evidence concerning all three girls pursuant to Evidence Code section 1108
(section 1108). Croft filed a trial brief opposing admission of expert testimony
concerning CSAAS and N.B.’s testimony.
              At a hearing, the trial court ruled expert testimony concerning CSAAS was
admissible. With respect to prior uncharged sexual offense evidence, the trial court ruled
the “significant” probative value of the evidence outweighed any prejudicial effect. The
court opined that although the evidence may have some prejudice, it would not evoke an
emotional bias against Croft. The court explained admission of the evidence would not
confuse the jury or necessitate an undue amount of time.

                                              5
N.B.
              At trial, the prosecution offered N.B.’s testimony pursuant to section 1108.
N.B. spent the night at the Croft residence in Texas a couple times a month both when
M.C. and A.C. were there and when they were gone. N.B. testified that when she was
between four and six years old, Croft raped and sexually molested her. N.B. said Croft
rubbed her vagina on multiple occasions. On one occasion, N.B. slept in M.C. and
A.C.’s bedroom while they were gone. Croft went into their bedroom, woke up N.B., and
told her to come into his bedroom. N.B., with her feet on the floor, bent over the bed and
Croft pulled down her underpants, and rubbed lotion on her buttocks. Croft put his penis
inside her anus and moved back and forth as he pushed the pillow down over her head.
When he was done, Croft pulled up N.B.’s underpants and told her not to tell anyone and
to go back to the girls’ bedroom. N.B. testified Croft sodomized her like this on more
than one occasion. N.B. also testified Croft positioned her in the same manner on the bed
and put his penis in her vagina a couple times.
              The prosecution offered A.C.’s and M.C.’s testimony as detailed above. As
relevant here, M.C. testified on cross-examination as follows. M.C. testified Croft
molested her when she was “younger, like five or six.” When defense counsel asked her
whether she remembered during the CAST interview telling Ball she was “six, seven, and
eight[,]” M.C. answered, “Yes.” Counsel asked whether the ages she provided during the
CAST interview were correct, and M.C. stated that during the interview she was confused
about her age when Croft molested her. When counsel asked what grade she was in,
M.C. responded, “kindergarten.” Counsel asked whether she remembered telling Ball the
molestations also occurred when she was in first grade, and M.C. replied, “Yes[,]” and
she agreed her memory was better then. When asked, M.C. stated Croft molested her
during the day and never at night when Mother was asleep. M.C. did not remember
telling Ball that Croft molested her when Mother was asleep.



                                             6
             Defense counsel questioned M.C. about the incident that occurred around
Christmas. M.C. stated Croft started to molest her but he did not because someone came
home. Counsel asked M.C. whether she remembered telling Ball that Croft did molest
her, M.C. said she could not remember. After M.C.’s recollection was refreshed with the
transcript of her CAST interview, M.C. admitted she told Ball that Croft did molest her.
When asked again, M.C. testified Croft did not molest her. M.C. admitted she was
having difficulty with her memory.
             Defense counsel questioned M.C. about what she told police officers
concerning when Croft molested her. When asked, M.C. answered she could not
remember whether she told officers Croft molested her over a span of years or when she
was in kindergarten. Counsel suggested M.C. was unclear when Croft molested her, and
M.C. replied, “I would say kindergarten.” When counsel reminded her that she
previously said Croft molested her over the course of a few years, M.C. responded,
“Correct.” After her recollection was again refreshed, M.C. agreed she told Ball that she
was “seven, eight-ish, maybe six[]” when Croft molested her.
             On redirect examination, M.C. testified she told Ball that Croft molested
her primarily when she was in kindergarten at P.E. She also told Ball that Croft may
have molested her while she was in preschool when they lived in Texas but she could not
remember. M.C. told Ball that Croft moved to Texas possibly when she was in first
grade but he was definitely not there when she was in second grade. She could not
remember whether Croft sodomized her the day they decorated the Christmas tree.
             After A.C. and M.C. testified, the prosecutor sought to admit evidence of
their CAST interviews because based on defense counsel’s cross-examination the
interviews included prior consistent and inconsistent statements (on appeal Croft limits
his argument to admission of M.C.’s interview and we thus limit our discussion
accordingly). In arguing for the admissibility of M.C.’s entire CAST interview, the
prosecutor cited to M.C.’s statements concerning when Croft began molesting her

                                            7
(kindergarten), and how often (two to three times per week), and the incident around
Christmas. Defense counsel objected to admission of any of M.C.’s statements because
there were no prior inconsistent statements. The trial court recessed for the day to read
the interview transcripts.
              The next day, the trial court stated there were inconsistencies between
M.C.’s CAST interview and her trial testimony. The court discussed at length M.C.’s
statements at trial and during the CAST interview, noting the inconsistencies concerning
when and where Croft began molesting her and whether Croft vaginally penetrated her.
Relying on Evidence Code sections 791 (section 791) and 1236 (section 1236), and
People v. Williams (2002) 102 Cal.App.4th 995 (Williams), the court ruled M.C.’s entire
CAST interview was admissible as prior consistent statements because it was relevant as
to M.C.’s credibility and not too prejudicial, time consuming, or misleading. The court
added the jury would benefit from the evidence.
CSAAS Testimony
              Jody Ward, a clinical and forensic psychologist, testified concerning
CSAAS, which relates specifically to ongoing sexual molestation between an adult and a
child. Ward explained CSAAS consists of the following five components: secrecy;
helplessness; entrapment and accommodation; delayed conflicted unconvincing
disclosure; and retraction. Ward provided detailed testimony about each component,
including the most widely researched component delayed disclosure, which reveals
two-thirds of victims do not report sexual abuse until adulthood.
M.C.’s CAST Interview
              The prosecution offered Ball’s foundational testimony in preparation for
playing A.C.’s and M.C.’s CAST interviews for the jury. M.C.’s interview began by her
providing details about herself and her family; M.C. knew she was there because of
“things” that happened when she was younger. When Ball asked her age, M.C. said,



                                             8
“Um, seven, eightish (SIC), maybe six.” M.C. said it happened more than one time.
When Ball asked what happened, M.C. said Croft touched her.
              M.C. said she could not remember the first time but described one of the
earlier times as around Christmas when they were decorating the tree and he told her to
come into his bedroom. Croft told her to lay on the bed and he put his penis in her anus.
M.C.’s grandparents arrived, and Croft told M.C. to leave the bedroom.
              When Ball asked whether that was the first time, M.C. said, “No,” there
was a time before at night when they were getting ready for bed and he told her to count
to 100 and come into his bedroom. M.C. pretended to be asleep, but Croft went to her
bedroom, brought her into his bedroom, and put his penis in her anus. Ball asked her
how many times Croft sodomized her, and she replied, “Too many to count[,]” and “more
than 20.” M.C. first stated Croft began abusing her when he would pick her up from
preschool and take her to get chips but then said kindergarten and then she could not
remember. When asked, M.C. said Croft primarily put his penis in her anus although “he
did try to put it in [her] vagina once but like well a couple a times but it was like [she]
would scream and . . . he’d stop.” Ball attempted to develop a timeline of the abuse.
              Ball reminded M.C. she had said Croft began abusing her in preschool or
kindergarten. The transcript of the interview indicates they spoke simultaneously and
there was background noise but M.C. apparently stated she thought it was kindergarten.
She later said preschool in Texas. After M.C. said she went to kindergarten at P.E., she
remembered Croft picking her up at preschool in Texas, taking her home, and abusing
her. M.C. added she remembered Croft picked her up from kindergarten at P.E., taking
her to Rite Aid to buy hot Cheetos, taking her home, and abusing her. M.C. said she
went to first grade at P.E. and Croft moved out the end of that year. She said he never
abused her again after he moved out. M.C. then stated Croft may have lived with them
the beginning of her second grade year. She stated though Croft abused her a couple
times a week from the time she was in preschool to the time he moved out. M.C.

                                               9
admitted to Ball that she lied to Mother the first time she asked whether Croft had
molested her.
                Ball returned to the incident around Christmas, asking M.C. when that
happened. M.C. said, “sometime in kindergarten.” M.C. added that the other time, when
Croft asked her to count to 100, was also in kindergarten. When Ball asked her about the
time he put his penis in her vagina, M.C. stated she lay on her back and he put a pillow
over her face but she did not remember when it happened. M.C. did not remember any
“wet stuff” on her buttocks or vagina, but she remembered him wiping her off with a
towel.
Defense Evidence
                Croft’s father testified that after Croft returned to Texas, he did not
remember Croft ever going back to California. Croft’s brother testified he lived with
Croft in Texas in 2001 and 2002. The parties stipulated M.M. would have testified she
was Croft’s ex-girlfriend and Croft’s daughters were comfortable and interacted normally
with him when they visited him in Texas.
Closing Argument, Jury Instructions, Verdicts & Sentencing
                After closing argument, the trial court instructed the jury, as relevant here,
with the following: CALCRIM Nos. 220, “Reasonable Doubt”; 1110, “Lewd or
Lascivious Act: Child Under 14 Years”; 1191, “Evidence of Uncharged Sex Offense”;
1191A, “Evidence of Uncharged Sex Offense”; and 1193, “Testimony on Child Sexual
Abuse Accommodation Syndrome.”
                The jury convicted Croft of all counts and found true all the allegations.
The trial court sentenced Croft to 15 years to life on each of the four counts to run
consecutively for a total prison term of 60 years to life.




                                               10
                                       DISCUSSION
I. M.C.’s CAST Interview
              Croft argues the trial court erred by admitting evidence of M.C.’s CAST
interview. As we explain below, we conclude the trial court properly admitted prior
consistent statements M.C. made during her CAST interview but the court erred by
admitting the entire interview. However, we conclude Croft was not prejudiced.
              Evidence Code section 1200 prohibits the admission of hearsay evidence.
Section 1236 allows the admission of a witness’s hearsay statements that are consistent
with her testimony at the hearing subject to section 791. (See Evid. Code, § 1235
[analogous provision for inconsistent statements].)
              Section 791 states: “Evidence of a statement previously made by a witness
that is consistent with his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is
inconsistent with any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made before the alleged
inconsistent statement; or [¶] (b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for fabrication, or other
improper motive is alleged to have arisen.” We review the trial court’s hearsay ruling for
an abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
              Here, Croft states section 791 “had only limited application in this case”
and concedes defense counsel “successfully impeached [M.C.]” on “only a very limited
number of matters.” Croft focuses on three areas of testimony counsel successfully
impeached M.C., i.e., her age, her grade, and the incident around Christmas, and asserts
her CAST interview did not include prior consistent statements. The Attorney General
discusses only M.C.’s age and grade.



                                             11
              On direct examination, M.C.’s testimony established she attended P.E.
beginning in kindergarten, when she was six years old, and Croft would pick her up and
take her to Rite Aid, where he worked, to buy her hot Cheetos. M.C. described an
incident during this time where Croft took her home and sodomized her. She added he
sodomized her on more than one occasion during her kindergarten year when she was six
years old. M.C. stated she was in kindergarten when Croft told her to count to 100 and
come into his bedroom and the incident around Christmas. She did not remember Croft
molesting her in Texas. Although M.C. initially testified Croft did not penetrate her
anywhere other than her anus, the prosecutor refreshed her recollection with her CAST
interview and she stated he put his penis in her vagina twice. M.C. stated she had trouble
remembering what happened, she tried to forget it, and her memory about what happened
was better when she was 15 years old.
              On cross-examination, M.C. initially stated Croft molested her when she
was five or six years old. When defense counsel asked M.C. whether she remembered
telling Ball that Croft molested her when she was six, seven, and eight years old, she said,
“Yes[,]” but she was unsure of her age. She added, “[A]ll [she] remember[ed] [was] . . .
being in kindergarten.” When counsel asked her whether she remembered telling Ball it
also happened in first grade, she said, “Yes.” Later when counsel suggested she did not
have a clear recollection of when Croft molested her, she said, “I would say
kindergarten.” Counsel refreshed M.C.’s recollection with a transcript of her CAST
interview and twice asked whether she told Ball that Croft molested her when she was
six, seven, and eight, and she replied, “Yes.”
              The trial court properly admitted statements M.C. made during her CAST
interview. Because defense counsel impeached M.C.’s credibility regarding her age and
grade level during cross-examination, the prosecution was entitled to rehabilitate her
credibility through prior consistent statements from her CAST interview within the
meaning of sections 1236 and 791, subdivision (a).

                                             12
              During her CAST interview, M.C. initially told Ball that she was between
six and eight years old and Croft would pick her up from school from the time she was in
preschool to first grade, take her where he worked to buy chips, take her home, and
sodomize her. M.C. later told Ball she went to kindergarten at P.E., Croft would pick her
up from kindergarten, he would take her to the Rite Aid where he worked to buy her hot
Cheetos, he would take her home, and he would sodomize her. She added he would
sodomize her a couple times a week until he moved to Texas. These statements were
consistent with her trial testimony, and were admissible as prior consistent statements.
              Croft asserts M.C.’s prior consistent statements from her CAST interview
were not prior because her statements concerning kindergarten were not prior to her
statements Croft abused her when she was six, seven, and eight years old during the same
interview. There is no such requirement. The prior consistent statement, here M.C.’s
statements at the CAST interview, must have been made prior to the inconsistent
statement, here M.C.’s testimony during cross-examination. Croft relies on People v.
Coleman (1969) 71 Cal.2d 1159, 1165-1166 (Coleman),2 but that case concerned whether
statements were made before the improper motive arose pursuant to section 791,
subdivision (b). We are not concerned with that subdivision here.
              Relying on People v. Riccardi (2012) 54 Cal.4th 758 (Riccardi),3 Croft’s
primary contention is the trial court erred by admitting M.C.’s entire CAST interview
instead of those prior consistent statements limited to her age and grade. In Riccardi, the
trial court admitted the entire audio recording of the victim’s friend’s two-hour interview
with the police pursuant to sections 1236 and 791, subdivision (b). (Riccardi, supra,



2            Coleman was overruled on other grounds in Garcia v. Superior Court
(1997) 14 Cal.4th 953, 966, fn. 6.)

3           Riccardi was overruled on other grounds in People v. Rangel (March 28,
2016, S076785) __ Cal.4th ___.

                                            13
54 Cal.4th at p. 797.) The California Supreme Court concluded the trial court erred by
admitting the entire interview. The court explained that although portions of the
interview were admissible to refute the defense’s characterization of the victim’s
testimony, the rule of completeness (Evid. Code, § 356) did not warrant admission of the
entire interview because the portions relevant to rehabilitate the victim did not create a
misimpression requiring admission of the entire interview. (Riccardi, supra, 54 Cal.4th
at p. 803.) The court opined the victim’s friend’s long rambling narratives about the
history of defendant’s relationship with the victim were duplicative and irrelevant. The
court, however, concluded the error was harmless. (Id. at pp. 804-805.)
              In Williams, supra, 102 Cal.App.4th at page 1010, the case the trial court
relied on here, the trial court admitted into evidence a one-hour videotape of interviews
between the police and two witnesses. The court held admission of the entire videotape
was proper under sections 1236 and 791, subdivision (b), to refute the defense’s claim the
witnesses fabricated portions of their testimony. (Williams, supra, 102 Cal.App.4th at
p. 1011.) The court explained admission of the entire one-hour videotape did not violate
Evidence Code section 352 (section 352) because examination of the officer who
interviewed the witnesses concerning each of the questions would have consumed a
similar amount of time or longer. (Williams, supra, 102 Cal.App.4th at p. 1012.) The
court added the evidence was duplicative of other evidence and would not have misled or
confused the jury. (Ibid.)
              Here, as we explain above, M.C.’s CAST interview includes prior
consistent statements concerning when, where, and how often Croft sexually abused her
that were admissible pursuant to sections 1236 and 791, subdivision (a). However, the
trial court erred by admitting the entire CAST interview in reliance on Williams. Like in
Riccardi, we conclude presentation of the entire interview was improper. The interview
included long narratives about M.C.’s family history and upbringing that were irrelevant
and statements concerning the details of the incidents that were duplicative and irrelevant

                                             14
to when and where Croft began molesting her. Unlike Williams, we conclude here that
evidence duplicative of other evidence was irrelevant and unduly time consuming.
              Contrary to the Attorney General’s claims, admission of the entire
interview was not required to prevent misimpressions caused by admitting only portions
of the interview or to demonstrate her credibility. The prior consistent statements
concerned discrete questions of M.C.’s age, grade, and residence. Evidence of the other
statements regarding her family’s history and the reporting of the incidents had little, if
any, relevance to her age, grade, and residence. Statements M.C. made during her
interview concerning her age, grade, and residence alone were relevant and admissible to
correct any misimpressions and rehabilitate her credibility. But evidence of these
discrete questions did not require admission of her other statements to present a complete
picture or further rehabilitate her credibility. Simply put, they were irrelevant to the
subject matter of the prior consistent statements. Thus, we conclude the trial court
abused its discretion by admitting M.C.’s entire CAST interview.
              However, it was not reasonably probable Croft would have received a more
favorable result had the trial court not admitted M.C.’s entire CAST interview.
(Riccardi, supra, 54 Cal.4th at p. 804.) First, a significant portion of M.C.’s statements
during her CAST interview lacked substance and were irrelevant. For example, M.C.
talked at length about her family and upbringing, and what happened after the incidents.
These statements lacked any prejudicial effect. Second, M.C. made statements during her
CAST interview that were internally inconsistent and thus impeached her credibility. For
example, M.C. first stated Croft began abusing her when she was in preschool, then said
kindergarten, and then said she could not remember. Additionally, M.C. initially said
Croft moved out the end of her first grade year, but then said Croft maybe lived with
them during second grade. These inconsistencies impeached M.C.’s credibility to Croft’s
benefit.



                                             15
              Finally, A.C.’s and N.B.’s testimony were remarkably similar to M.C.’s
testimony and provided substantial evidence of Croft’s guilt. Their testimony establishes
Croft’s modus operandi was to use his position of trust to isolate his three- to six-year-old
victims. Once he isolated them in a private area, he forced them to lie on his bed face
down. He then sodomized the young girls using a pillow to muffle their screams. Croft
complains admission of M.C.’s entire CAST interview gave a “boost” to M.C.’s
credibility because the jury heard her story twice. Any “boost” to M.C.’s credibility was
counterbalanced for the reasons stated above, i.e. much of the interview was irrelevant
and M.C.’s credibility was damaged. The real “boost” came from A.C.’s and N.B.’s
testimony, corroborating M.C.’s testimony and providing sufficient, if not overwhelming,
evidence of Croft’s guilt.
              Based on the entire record we conclude it was not reasonably probable
Croft would have received a more favorable result had the trial court not admitted M.C.’s
entire CAST interview. Although we conclude the trial court erred by admitting the
entire interview, Croft was not prejudiced.
II. Section 1108
A. Admission N.B.’s Testimony
              Croft contends the trial court erred by admitting N.B.’s testimony because
it was unduly prejudicial. We disagree.
              Evidence Code section 1101, subdivision (a), prohibits admission of
evidence of an uncharged offense to prove criminal disposition. However, section 1108
creates an exception to this general prohibition in cases involving sexual offenses.
Section 1108, subdivision (a), states, “In a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the
evidence is not inadmissible pursuant to [s]ection 352.”



                                              16
              Section 352 provides: “The court in its discretion may exclude evidence if
its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” For purposes of section
352, “prejudice” means “‘evidence that uniquely tends to evoke an emotional bias against
a party as an individual, while having only slight probative value with regard to the
issues. [Citation.]’” (People v. Heard (2003) 31 Cal.4th 946, 976.)
              In Harris, supra, 60 Cal.App.4th at pages 737 to 741, the court articulated
the following factors to determine whether evidence of prior sexual acts was properly
admitted pursuant to section 1108: (1) the probative value of the evidence; (2) the
inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) the
amount of time involved in introducing and refuting the evidence of uncharged offenses;
and (5) remoteness in time of the uncharged offenses. We review the trial court’s
admission of evidence pursuant to sections 1108 and 352 for an abuse of discretion.
(People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
              Here, Croft does not dispute N.B.’s testimony had probative value.
“[E]vidence of a ‘prior sexual offense is indisputably relevant in a prosecution for
another sexual offense.’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274,
282-283 (Branch).) Sodomy (§ 286), and lewd and lascivious acts (§ 288) are sexual
offenses as defined by section 1108, subdivision (d)(1)(a), and thus, they are relevant in a
prosecution of sexual offenses. Additionally, the evidence showed Croft sodomized N.B.
in the identical manner he sodomized M.C. and A.C., which shows N.B.’s testimony was
no more inflammatory than M.C.’s and A.C.’s testimony.
              The only Harris element Croft raises is the third element, confusion of the
issues. Unfortunately, the Attorney General does not address this element. In fact, the
Attorney General does not address any of the Harris factors, other than probative value.



                                             17
We remind the Attorney General to support her contentions with reasoned argument.
(Cal. Rules of Court, rule 8.204(a)(1)(B).)
              “If the prior offense did not result in a conviction, that fact increases the
danger that the jury may wish to punish the defendant for the uncharged offenses and
increases the likelihood of confusing the issues ‘because the jury [has] to determine
whether the uncharged offenses [in fact] occurred.’ [Citation.]” (Branch, supra,
91 Cal.App.4th at p. 284.) “This risk, however, is counterbalanced by instructions on
reasonable doubt, the necessity of proof as to each of the elements of a lewd act with a
minor, and specifically that the jury ‘must not convict the defendant of any crime with
which he is not charged.’” (People v. Frazier (2001) 89 Cal.App.4th 30, 42 (Frazier).)
              Here, the trial court did not abuse its discretion in ruling N.B.’s testimony
was not likely to confuse or mislead the jury. N.B. described in great detail just one
incident where Croft sodomized her and provided generic testimony it happened more
than once and he put his penis in her vagina on two occasions. This testimony was nearly
identical to M.C.’s and A.C.’s testimony and we can reasonably conclude the jury would
not be confused or misled. Additionally, the trial court’s instructions countered any risk
of confusion. The trial court instructed the jury on the elements of the charged and
uncharged offense, reasonable doubt, and the proper use of evidence of prior sexual
offenses. There is nothing in the record to indicate the jury was confused by N.B.’s
testimony concerning the uncharged sexual intercourse evidence. (Branch, supra,
91 Cal.App.4th at p. 284.)
              Croft does not contend presentation of and refuting N.B.’s testimony
consumed too much time. N.B.’s testimony was relatively brief, consisting of less pages
of the reporter’s transcript than M.C.’s testimony and about the same as A.C.’s testimony.
              Finally, Croft does not contend the offenses concerning N.B. were too
remote. Nor could he. The evidence at trial demonstrated the offenses concerning N.B.
occurred no more than a few years from the offenses concerning M.C. and A.C. Croft

                                              18
“has failed to carry his burden of rebutting the strong presumption of admissibility of the
sexual assault crimes evidence under . . . section 1108.” (People v. Merriman (2014)
60 Cal.4th 1, 42.) Thus, the trial court did not abuse its discretion by admitting N.B.’s
testimony.
B. Due Process and Equal Protection
              Conceding the California Supreme Court in People v. Falsetta (1999)
21 Cal.4th 903, 916, resolved this claim against him, Croft argues the issue of whether
the admission of propensity evidence pursuant to section 1108 violates due process
should be reconsidered and he raises the issue to preserve it for federal review. Pursuant
to the doctrine of stare decisis, we are bound by our Supreme Court’s decision. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
Croft’s due process claim is meritless. For the reasons explained in People v. Waples
(2000) 79 Cal.App.4th 1389, 1394-1395, and People v. Fitch (1997) 55 Cal.App.4th 172,
184-185, we also reject Croft’s argument section 1108 violates equal protection.
C. CALCRIM No. 1191A
              Croft asserts the trial court erred by instructing the jury with CALCRIM
No. 1191A concerning M.C. and A.C. because it created an improper inference of guilt.
Not so.
              In a criminal case, with or without a request from the parties, the trial court
must instruct on “‘the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case. [Citations.]’ [Citation.]” (People v.
Smith (2013) 57 Cal.4th 232, 239.) We review claims of instructional error de novo. (Id.
at pp. 239-240.)
              Over defense counsel’s objection, the trial court instructed the jury with
CALCRIM No. 1191A, as follows: “The [p]eople presented evidence that the defendant

                                             19
committed the crimes of lewd act on child under 14 years of age that were charged and
not charged in this case, namely, charged and uncharged acts against [M.C.] and [A.C.] in
California and Texas. These crimes are defined for you in these instructions. [¶] You
may consider this evidence only if the [p]eople have proved beyond a reasonable doubt
that the defendant in fact committed the uncharged offenses. [¶] If the [p]eople have not
met this burden of proof, you must disregard this evidence entirely. [¶] If you decide
that the defendant committed the charged and uncharged sexual offenses, you may
consider that evidence and weigh it together with all the other evidence received during
the trial to help you determine whether the defendant committed the charged offenses.
Remember, however, that evidence of another uncharged sexual offense or a sexual
offense against another person is not sufficient alone to find the defendant guilty of lewd
act on child under 14 years of age ([M.C.] and [A.C.]). The [p]eople must still prove
each charge and allegation beyond a reasonable doubt.” (Italics added.) CALCRIM No.
1191 instructed the jury on the proper use of N.B.’s testimony.
              Contrary to Croft’s argument, the above italicized language did not
improperly suggest an inference of guilt. Here, like in all criminal cases that go to trial,
the prosecution presented evidence the defendant committed a crime. A defendant can
then either rest on the state of that evidence, or present his own evidence refuting the
prosecution’s evidence. The remainder of the instruction correctly tells the jury that if it
believed beyond a reasonable doubt the prosecution’s evidence Croft committed the
uncharged sexual offenses, the jury could not rely on that evidence alone to convict him
of the charged offenses. The instruction concludes, “The [p]eople must still prove each
charge and allegation beyond a reasonable doubt.”
              Croft’s reliance on People v. Owens (1994) 27 Cal.App.4th 1155 (Owens),
is misplaced. That case involved a prosecution for continuous sexual abuse of a child,
and the trial court instructed the jury the prosecution had introduced evidence “‘tending
to prove’” there were more than three acts of substantial sexual conduct, and defendant

                                             20
could be found guilty if the proof showed beyond a reasonable doubt and the jury
unanimously agreed defendant committed three such acts. (Id. at p. 1158.) The court
held the trial court erred in using the phrase “‘tending to prove’” because it carried the
inference the prosecution had established defendant’s guilt and thereby relieved the
prosecution of its burden of proving guilt beyond a reasonable doubt. (Id. at pp. 1158-
1159.)
              Nothing similar occurred in this case. As we explained above, CALCRIM
No. 1191A correctly informed the jury that if it concluded Croft committed uncharged
sexual offenses against M.C. and A.C., the jury could rely on that evidence to conclude
Croft had a propensity to commit sexual offenses against children but it could not rely on
that evidence alone in determining Croft’s guilt of the charged offenses. Unlike the
instruction in Owens, this was a correct statement of the law. Thus, CALCRIM No.
1191A did not improperly shift the burden of proof to Croft to prove his innocence in
violation of his federal constitutional rights.4
III. CSAAS
A. Expert Testimony
              Relying on authority from Pennsylvania, Kentucky, and Tennessee, Croft
contends “CSAAS evidence should be held inadmissible in California for all purposes.”
Again we disagree.
              CSAAS evidence is routinely admitted in child sexual abuse cases. (People
v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301; People v. Patino (1994) 26 Cal.App.4th

4              Contrary to the Attorney General’s claim otherwise, the California Supreme
Court in People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1169 (Villatoro), did not
conclude the language at issue here was constitutionally proper. In that case, the court
addressed whether a modified version of CALCRIM No. 1191 properly designated the
standard of proof to be applied to charged offenses. Although the court held the
modified instruction did not impermissibly lower the prosecution’s burden of proof or
interfere with defendant’s presumption of innocence, the Villatoro court did not expressly
approve of the language at issue here. (Villatoro, supra, 54 Cal.4th at p. 1168.)

                                              21
1737, 1744-1745 [use of CSAAS evidence does not render trial fundamentally unfair];
see People v. Brown (2004) 33 Cal.4th 892, 905-906 [case involving battered women’s
syndrome discussing McAlpin with approval].) To the extent our Supreme Court has
recognized that such evidence may be relevant, useful, and admissible in a given case, as
an intermediate court, we are in no position to rule otherwise. (Auto Equity Sales, supra,
57 Cal.2d at p. 455.) Thus, Croft’s reliance on out-of-state authority, Newkirk v.
Commonwealth (Ky. 1996) 937 S.W.2d 690, Commonwealth v. Dunkle (Pa. 1992)
602 A.2d 830, and State v. Bolin (Tenn. 1996) 922 S.W.2d 870, is misplaced.
              Here, M.C., A.C., and N.B. delayed reporting the sexual abuse for years.
Thus, Ward’s testimony concerning CSAAS was relevant, useful, and admissible, and its
admission did not violate Croft’s federal constitutional rights.
B. CALCRIM No. 1193
              Croft asserts CALCRIM No. 1193 erroneously advises jurors they can
consider CSAAS evidence in evaluating the complaining witness’s credibility. Croft’s
claim is meritless.
              CALCRIM No. 1193 provided as follows: “You have heard testimony
from . . . Ward regarding [CSAAS]. [¶] . . . Ward’s testimony about [CSAAS] is not
evidence that the defendant committed any of the crimes charged against him. [¶] You
may consider this evidence only in deciding whether or not [M.C.’s] and [A.C.’s]
conduct was not inconsistent with the conduct of someone who has been molested, and in
evaluating the believability of their testimony.”
              In McAlpin, supra, 53 Cal.3d at page 1300-1301, italics added, footnote
omitted, the Supreme Court explained: “[E]xpert testimony on the common reactions of
child molestation victims is not admissible to prove that the complaining witness has in
fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when
the defendant suggests that the child’s conduct after the incident—e.g., a delay in
reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]

                                             22
‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions
about child sexual abuse, and to explain the emotional antecedents of abused children's
seemingly self-impeaching behavior.’”
               CALCRIM No. 1193 comports with McAlpin. As we explain above, the
three girls delayed reporting Croft’s sexual abuse for years. Ward’s testimony regarding
CSAAS was relevant to disabuse the jury of the notion that a child who was abused
would have reported the abuse immediately. Therefore, the relationship between CSAAS
evidence and the victim’s credibility reflected in CALCRIM No. 1193 was proper, and
the trial court did not err by giving the instruction.
IV. Sentence
A. Penal Code section 667.61
               Croft argues the trial court erred by imposing multiple life terms because
Penal Code section 667.61, subdivision (e)(5),5 does not authorize them when read
together with subdivisions (f) and (g).6 Again we disagree.


5            Because the offenses here occurred before 2006, the trial court applied the
pre-2006 version of section 667.61. Thus, we utilize this version of the statute on appeal.
Differences between this version and its current version are not material to the appeal.
             All further statutory references are to the Penal Code.
6              Section 667.61, subdivision (f), provides: “If only the minimum number of
circumstances specified in subdivision (d) or (e) which are required for the punishment
provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance
or those circumstances shall be used as the basis for imposing the term provided in
subdivision (a) or (b) rather than being used to impose the punishment authorized under
any other law, unless another law provides for a greater penalty.”
               Section 667.61, subdivision (g), states: “The term specified in subdivision
(a) or (b) shall be imposed on the defendant once for any offense or offenses committed
against a single victim during a single occasion. If there are multiple victims during a
single occasion, the term specified in subdivision (a) or (b) shall be imposed on the
defendant once for each separate victim. Terms for other offenses committed during a
single occasion shall be imposed as authorized under any other law, including
[s]ection 667.6, if applicable.”


                                               23
              Section 667.61, subdivision (b), provided in relevant part, “[A] person who
is convicted of an offense specified in subdivision (c) under one of the circumstances
specified in subdivision (e) shall be punished by imprisonment in the state prison for life
and shall not be eligible for release on parole for 15 years except as provided in
subdivision (j).” A violation of section 288, subdivision (a), was a qualifying offense.
(§ 667.61, subd. (c)(7).) One of section 667.61, subdivision (e)’s circumstances is “[t]he
defendant has been convicted in the present case or cases of committing an offense
specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).) The
California Legislature enacted section 667.61 to ensure serious sexual offenders receive
long prison sentences regardless of their prior criminal records. (People v. Wutzke (2002)
28 Cal.4th 923, 929 (Wutzke).)
              Croft acknowledges other appellate courts have rejected his arguments.
(People v. Valdez (2011) 193 Cal.App.4th 1515, 1523-1524 (Valdez); People v. Stewart
(2004) 119 Cal.App.4th 163, 171; People v. Murphy (1998) 65 Cal.App.4th 35, 40-41
(Murphy); People v. DeSimone (1998) 62 Cal.App.4th 693, 697-698 (DeSimone)), and he
concedes the California Supreme Court has relied on DeSimone and Murphy in deciding
other related cases (Wutzke, supra, 28 Cal.4th at pp. 931-944; People v. Jones (2001)
25 Cal.4th 98, 107). However, Croft asserts the non-forcible nature of section 288,
subdivision (a), warrants different treatment for offenders convicted of this crime.
              In Valdez, supra, 193 Cal.App.4th at page 1522, the court reasoned: “‘The
statutory intent and scheme of . . . section 667.61, subdivision (e)[,] is not difficult to
discern. Where the “present offense” against a victim is a qualifying offense and the
gravity of that offense is enhanced by one of the circumstances enumerated in
subdivisions (e)(1), (2), (3), (4), (6), or (7), the life sentence mandated by the statute shall
apply. But even in circumstances where the subdivisions enumerated above do not apply,
if a qualifying offense has been committed against more than one victim, the criminal
conduct is considered equally severe and that conduct merits application of the statute so

                                              24
long as those offenses are prosecuted “in the present case or cases.” [Citation.]’
[Citations.]” The Valdez court also rejected defendant’s claim section 667.61,
subdivisions (f) and (g), compelled a contrary result. (Valdez, supra, 193 Cal.App.4th at
pp. 1522-1523.) We find the Valdez court’s reasoning persuasive, and Croft offers us no
compelling reason to depart from it. Therefore, the trial court properly imposed
consecutive life sentences for each of the four counts.
B. Section 654
              Croft alternatively contends imposition of four consecutive life terms
violates section 654’s prohibition for multiple punishments. Not so.
              Section 654, subdivision (a), provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision . . . .” Section 654
proscribes multiple punishment where all offenses were incidental to one objective.
(People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in
People v. Scott (2015) 61 Cal.4th 363.)
              Croft acknowledges the court in People v. Murphy (1998) 65 Cal.App.4th
35, 41, rejected the identical argument. The court stated, “[I]n making multiple
convictions for violent sex offenses punishable by multiple life sentences, the Legislature
was expressing the view that multiple violent sex offenses deserve more severe
punishment than a single violent sex offense because of the predatory nature of the
perpetrator.” Additionally, assuming section 654 did apply, it was not implicated.
              The trial court found Croft committed separate offenses against separate
victims on separate occasions. The trial court did not impose multiple punishments for
the same act, nor were the offenses incidental to one objective. Thus, the court’s
imposition of four consecutive life terms did not violate section 654.



                                            25
C. Apprendi & Blakely
              Relying on Cunningham v. California (2007) 549 U.S. 270, Blakely v.
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v.
New Jersey (2000) 530 U.S. 466, Croft argues the trial court erred by imposing
consecutive sentences because the jury did not find the aggravating factors the court
relied on to impose consecutive sentencing as required by section 667.61, subdivision (g)
(see supra p. 23, fn. 4). As Croft acknowledges, this claim has been rejected in People v.
Retanan (2007) 154 Cal.App.4th 1219 (Retanan).
              In Retanan, the court held the limitation in section 667.61, subdivision (g),
did not create a statutory maximum but rather that subdivision was closely analogous to
section 654. (Retanan, supra, 154 Cal.App.4th at p. 1229.) The court stated section 654
is a discretionary benefit provided by the Legislature to apply in those limited situations
where a defendant’s culpability is less than the statutory penalty for his or her crimes.
(Retanan, supra, 154 Cal.App.4th at p. 1229.) The court reasoned that because the
Blakely rule “does not apply to the determination that defendant does not come within
section 654 because that finding is not a factual determination made by a judge that
increases the maximum statutory penalty for the particular crime or crimes,” the same
analysis should apply to section 667.61. (Retanan, supra, 154 Cal.App.4th at p. 1229.)
              The court concluded as follows: “We find the same reasoning applies to
section 667.61, subdivision (g). The maximum penalty in defendant’s case was
established when the jury convicted him of the predicate offenses and sustained the
special circumstance allegations. Subdivision (g), if it applied, would only act to reduce
liability if defendant’s culpability was less than the statutory penalty for his crimes.
Mitigating the maximum statutory punishment does not fall within the rule of Blakely and
Apprendi. The trial court’s finding that the subdivision (g) exception does not apply
because the offenses are separate does not increase defendant’s maximum sentence.”



                                              26
(Retanan, supra, 154 Cal.App.4th at pp. 1229-1230.) We find the reasoning in Retanan
persuasive, and again Croft offers us no compelling reason to depart from it.
             Assuming for purposes of argument we were to conclude there was error,
we would conclude Croft was not prejudiced. (Washington v. Recuenco (2006) 548 U.S.
212, 222 [Blakely subject to harmless error analysis].) Again, the evidence
overwhelmingly established Croft sodomized M.C. and A.C. on separate occasions. We
are convinced beyond a reasonable doubt the jury would have found the offenses were
separate (§ 667.61, subd. (g)). (Chapman v. California (1967) 386 U.S. 18, 24.)
                                     DISPOSITION
             The judgment is affirmed.




                                                 O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.




                                            27
