People v. Torres CA4/1

Filed 4/30/15 P. v. Torres CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065126

Plaintiff and Respondent,

v. (Super. Ct. No. SCD243940)

MIGUEL ANGEL TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth

Kai-Young So, Judge. Affirmed in part as modified, reversed in part, and remanded with

directions.

Law Office of Kurt David Hermansen and Kurt David Hermansen, under

appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and

Respondent.
 INTRODUCTION

The San Diego County District Attorney filed an information charging Miguel

Angel Torres with four counts of committing a lewd and lascivious act upon his

stepdaughter (the victim), a child under the age of 14 years (Pen. Code, § 288, subd. (a),

hereafter Pen. Code, § 288(a)), and alleging that Torres committed each offense between

January 1, 2011 and October 16, 2012. Specifically, in counts 1 and 2 the information

alleged that he touched the victim's legs two times during that time period: a "first time"

(count 1) and a "last time" (count 2). In counts 3 and 4 the information alleged that

Torres touched the victim's stomach two times during that period: a "first time" (count 3)

and a "last time" (count 4). Thus, counts 1 and 3 were the "first-time" counts, and counts

2 and 4 were the "last-time" counts.

As to each of the four counts, the information alleged that Torres was previously

convicted of Penal Code section 288(a) within the meaning of Penal Code section 667.61,

subdivisions (a), (c) and (d) (which, under subdivision (a), would increase the

punishment for each count to a state prison term of 25 years to life).

The information also contained additional sentence enhancement allegations that

in May 2002 Torres had suffered six prior convictions for committing a lewd and

lascivious act upon a child under the age of 14 years (specifically, his other two

stepdaughters from a prior marriage, V.R. (V.), and G.R. (G.), as discussed, post), each of

which qualified as both (1) a prior serious felony conviction (within the meaning of Pen.

Code, §§ 667, subd. (a)(1), 1192.7, subd. (c)), and (2) a prior strike conviction within the

meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668). The

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parties stipulated that Torres had committed three of the prior lewd and lascivious acts

against V. and the other three lewd and lascivious acts against G.

At trial the court admitted, under Evidence Code1 sections 1108 and 352,

propensity evidence of Torres's prior sexual molestations of both V. and G. A jury found

Torres guilty of all four current Penal Code section 288(a) counts, and Torres admitted

that all of the prior serious felony and strike conviction allegations were true.

The court sentenced Torres to an aggregate state prison term of 300 years to life

plus 20 years, consisting of four consecutive indeterminate terms of 75 years to life (25

years to life under Pen. Code, § 667.61, subd. (a), tripled under the Three Strikes law),

plus a consecutive determinate term of 20 years (five years on each count under Pen.

Code, § 667, subd. (a)(1)).

Contentions and holdings

Torres raises seven contentions on appeal. First, he contends all four of his

convictions should be reversed and the case remanded for a new trial because the court

abused its discretion under sections 1108 and 352, and violated his federal constitutional

right to due process by admitting into evidence "irrelevant and highly inflammatory

details" of his prior sexual molestations of his stepdaughters from his prior marriage, V.

and G.

Second, Torres contends that, "if this [c]ourt determines that the trial court did not

abuse its discretion by admitting the prior-sex-offense evidence without limitation," his

1 All further statutory references are to the Evidence Code unless otherwise
specified.
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convictions should be reversed and the matter remanded for retrial because his trial

counsel provided ineffective assistance by failing to make "fact-specific objections" to

exclude irrelevant and "highly inflammatory details" of his prior sexual molestations of

V. and G.

Third, he contends his convictions should be reversed and the matter remanded for

retrial because his trial counsel provided ineffective assistance—after the panel of

prospective jurors was informed of Torres's prior sexual offenses—by failing to move for

a mistrial after a prospective juror allegedly "tainted the entire jury venire panel with

bias."

Fourth, Torres claims two of his four convictions—either counts 2 and 4 (the last-

time counts) or (as the Attorney General suggests) counts 1 and 3 (the first-time counts)

—should be reversed because the court lowered the prosecution's burden of proof and

violated his federal Constitutional right to due process when it erroneously responded to

the first of two questions in jury note No. 3 by answering "Yes" to the question of

whether, if the jury were to agree that "one instance" happened, "[that would] also be

both a 'first time' and 'last time.' " As noted, the Attorney General concedes that two of

Torres's four convictions—specifically, counts 1 and 3—should be reversed because "the

trial court's response could have led the jurors to find [Torres] guilty of four counts even

if the jurors only agreed that he was guilty of two criminal acts."

Fifth, in a related claim Torres contends all four of his convictions should be

reversed and the case remanded for retrial because the court erroneously instructed the

jury in its response to the second question in jury note No. 3 that the jurors could consider

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"all the evidence," including evidence of alleged acts that occurred before the time period

charged in the information. In response the Attorney General again concedes that

Torres's convictions of counts 1 and 3 (the first-time counts) should be reversed "due to

the trial court's flawed response" to jury note No. 3, but argues his convictions of counts

2 and 4 (the last-time counts) should be affirmed because the court "properly instructed

the jury on the date range of [those] charged offenses" and "there is no possibility that the

jury could have convicted [Torres] on [those counts] based upon anything that happened"

before the time period charged in the information.

Sixth, Torres contends that, if this court determines that he forfeited either of his

two preceding claims of error—which are based on the trial court's responses to jury note

No. 3—by failing to state a proper objection, all four of his convictions should be

reversed and the case remanded for retrial because he "was denied his Sixth Amendment

right to effective assistance of counsel when defense counsel failed to object to the trial

court's instructions that (1) one act would be both a 'first time' and a 'last time,' and (2) the

jury could consider acts that occurred outside the charged time period."

Last, Torres contends that all four of his convictions should be reversed and the

case remanded for retrial because the "cumulative effect" of the court's "multiple errors"

deprived him of his federal and state constitutional due process right to a fair trial.

For reasons we shall explain, we reverse Torres's convictions of counts 1 and 3

and affirm his convictions of counts 2 and 4. We further modify the judgment by

reducing Torres's aggregate prison sentence to an indeterminate term of 150 years to life

plus 10 years, consisting of two consecutive indeterminate terms of 75 years to life (25

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years to life under § 667.61, subd. (a), tripled under the Three Strikes law) for his

convictions of counts 2 and 4, plus a consecutive determinate term of 10 years (five years

on each count under § 667, subd. (a)(1)). We remand the matter to the superior court

with directions to correct the abstract of judgment.

FACTUAL BACKGROUND

A. The People's Case

The victim is the daughter of Janet G. (mother) and Carlos C., Sr. (father). She

was 12 years old at the time of trial in late 2013. Mother and father had four children

together (from oldest to youngest): (1) G.C. (the older of the victim's two brothers), (2)

K.C. (the victim's sister), (3) C.C., Jr. (the younger of the victim's two brothers), and (4)

the victim. Mother and father separated in 2004.

Mother met Torres in 2006. She testified that Torres told her about a month after

she met him that he was a registered sex offender. He informed her he had been

convicted of an offense involving his two stepdaughters.

Mother and Torres began dating a few months later. In around 2007, about a year

and a few months after he met mother in 2006, Torres moved in with her and her four

children in a house in Lakeside where they were living. About one and a half years later

they moved into an apartment on Home Avenue. In 2010 they moved again to a

residence on Craigie Street. Torres and mother married in 2011. During their

relationship Torres and mother had a child of their own, M.

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 The Lakeside house

The victim and one of her two brothers—C.C., Jr.—shared one of three bedrooms

in the Lakeside house. The victim testified they had bunk beds in that bedroom and they

would "switch it around" as to who would have the top bunk and who would have the

bottom one. The victim and C.C., Jr. sometimes left their bedroom door open when they

slept.

The victim testified that when she was about seven or eight years old, Torres

began touching her while she was asleep in her bedroom in the Lakeside house. Torres

would touch her upper thigh, his hand moving in a circular fashion. She also felt his

hands on her stomach, from her waist to her lower chest. When asked whether Torres

touched her vaginal area, the victim answered, "Somewhat." The prosecution asked her

to describe how close Torres's hand came to her vagina "on a scale of 1 to 10, 10 being

on [her] vagina." She replied, "Seven." She did nothing when she felt Torres rubbing her

body because she was "scared" of him.

The victim also testified that Torres would come into her room and rub her body

about two times per week when she and the family lived in Lakeside. She indicated he

would do it early in the morning close to the time she had to get up to go to school.

Torres worked early in the morning.

The victim testified she felt "disgusted" when Torres rubbed her legs and body.

She indicated this touching was "different." When Torres came in to the room just to

wake her up, he would turn on the light and would not touch her; the light would wake

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her up. Sometimes she would try to stop his touching her by "pushing him away." When

she did this, he never said anything, like "I was just trying to wake you up."

The Home Avenue apartment

The Home Avenue apartment had two bedrooms. The victim and her sister—K.C.

—shared a bedroom and slept in the same bed, and C.C., Jr. slept on the couch.

The victim testified that Torres's touching her happened "once in a while," about

twice a month, in the same way in her bedroom at the Home Avenue apartment. She

testified that K.C. was never in bed when Torres came into the room and touched her.

She did not know where K.C. was during those times.

While the family lived in the Home Avenue apartment, the victim learned that

Torres was a registered sex offender. She and a couple of her friends searched for

registered sex offenders in their area using an "iPod" application. They learned that

Torres had been convicted of a crime involving children under the age of 14 years. When

the victim spoke with her mother about it, her mother said it was not true.

The Craigie Street residence

The Craigie Street house had three bedrooms, and the victim and C.C., Jr. initially

shared one of them. They had separate beds, about three feet apart. K.C. moved out of

the house in the fall of 2012 to attend college in Berkeley, and the victim then had her

own room, but only for a two-week period.

During the time the family lived at the Craigie Street address, Torres worked for a

trucking delivery company. He would wake up between 4:00 and 5:00 a.m. and start

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work at 5:00 or 6:00 a.m. Mother would wake up the children at 6:20 a.m., after Torres

left for work, to get them ready for school.

The lock on the victim and C.C., Jr.'s bedroom door broke. The victim testified

that in order to keep the door closed at night, she and her brother placed a towel or piece

of cloth in the door jamb. She testified that to open the bedroom door, someone would

need to push on the door, which made a creaking noise that was loud "enough so

somebody could hear it."

The victim testified that Torres's touching her continued at the Craigie Street

house both before and after the lock broke. The touchings happened in the same way and

increased in frequency to about three times per week.

The victim's disclosures to her friends

The victim testified she did not tell anyone about the touching when they lived in

Lakeside or on Home Avenue because she was scared she would be taken away from her

family.

In early October 2012, when she was 11, the victim told three friends at her

middle school about the touchings: Van, Jasmin, and Carolina. She first disclosed the

touchings to Van and Carolina in private Facebook messages. Van and Carolina then

told Jasmin. The victim testified she then chatted with all three friends on Facebook

about what Torres was doing to her. While chatting with them she would cut herself on

the arm with a razor blade and show them pictures of herself cutting her arm.

The victim testified she cut her arm because she "felt so worthless." She would

ask herself, "What did I do wrong?" She described holding the blade and "slid[ing] it

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against [her] skin." She also told her friends that she wanted to die and that she had tried

to kill herself. Jasmin testified that the victim told her she was afraid of her stepdad

(Torres) because he might "hurt her again."

The victim further testified that she and her family took a weekend trip to visit

K.C. in San Francisco. She testified that during the trip, Van, Jasmin, and Carolina urged

her through Facebook to tell the school counselor, Sergio Hernandez, about the touching.

Carolina, who was 12 years of age at the time of the trial, testified she was the

victim's friend and classmate. In October 2012 the victim told her that her stepfather had

been touching her "in a bad way." The victim also told her she was cutting her wrists and

wanted to die. Carolina testified she told the victim to tell her mother about what was

happening to her. The victim told Carolina she was "scared" of Torres.

Jasmin, who also was 12 years of age at the time of the trial, testified that the

victim told her in October 2012 that her stepfather (Torres) "sexually harassed" her and

she was afraid of him. Jasmin also testified that the victim said "she was afraid that he

was going to hurt her again." The victim told Jasmin she wanted to die because her life

was "messed up already." The victim sent her pictures on Facebook showing the victim

cutting her arm. Jasmin testified she told the victim to talk to the school counselor.

Van, who also was 12 years of age at the time of the trial, testified that the victim

told her in October 2012 about the victim's stepfather touching her. Van testified she

convinced the victim to tell the school counselor about what was happening to her.

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 The victim's disclosures on October 16, 2012, to the school counselor and the
school police

On Tuesday, October 16, 2012, the day the victim returned to school, Van took her

from their physical education class to the office of the school counselor, Hernandez. The

victim talked to Hernandez about what Torres was doing to her, and Hernandez contacted

the school's police officer, Officer Carla Kuamoo.

Hernandez testified that the victim appeared "emotionally upset" and "maybe a

little bit embarrassed." The victim told him, "I feel like somebody is touching my body

at night, my legs, my body." She said she knew her bedroom door had been opened

because a towel she put between the door and door frame would be on the floor in the

morning. The victim identified her stepdad as the person who was touching her. The

victim told Hernandez, "My stepdad is a registered sex offender." Soon thereafter

Hernandez ended the interview and arranged to have Officer Kuamoo come immediately

to his office.

While the victim waited outside his office, Hernandez briefed Officer Kuamoo

about what he had learned. Officer Kuamoo then walked with the victim to Officer

Kuamoo's office. Officer Kuamoo testified that the victim was "very quiet and appeared

sad." The victim told Officer Kuamoo that Torres, her stepfather, was touching her all

over her body in the nighttime and that it had been happening since she was nine years

old. The victim said that she had only told three female sixth grade students at the school

before talking with Hernandez.

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 Officer Kuamoo testified the victim told her she decided to tell Hernandez about

the touchings because she "couldn't take it anymore." The victim said she put a towel in

the door jamb of her bedroom door every night to try to secure the door because it did not

have a lock. She told Officer Kuamoo she would find the towel on the floor in the

morning. The victim indicated she sometimes saw Torres come into her room, and he

would "speed walk" out of the room if he realized she was awake.

Officer Kuamoo also testified the victim told her Torres last touched her "[a]bout

one week ago," and she found out that Torres was a registered sex offender because she

looked him up on the registered sex offender Internet website.

Detective Dickinson's October 16, 2012 recorded interview of the victim, and the
victim's recantation letter

Later that same day, San Diego Police Department Detective Steven Dickinson

interviewed the victim in Hernandez's office. The audio recording of the interview was

played for the jurors, who were given copies of the transcript of the interview.

During the interview, the victim, who was then 11 years old, told Detective

Dickinson that Torres had been touching her. She said Torres thought she did not know

about the touching and "he [thought] he [could] get away with it." She told Detective

Dickinson that the last time it happened was about a week earlier when Torres walked

into her room and touched her leg while she was sleeping. She said he "stood up and just

got out" when she moved her leg. The victim also said Torres would touch her on her

thighs, and he would touch her breasts under her pajamas. He had been touching her

there about three times a week for about two years. When Detective Dickinson asked her

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how she knew it was Torres who was touching her, the victim replied, "Cause I woke up

and I saw him."

Detective Dickinson scheduled a forensic interview at Rady Children's Hospital

for the following day.

The victim testified she was scared to go home after she was interviewed because

she knew her mother would not believe her. Her mother came to pick her up from

school, and Torres, M., and C.C., Jr. were with her mother in the car. When the car

circled the campus a few times and then appeared to be leaving, police officers stopped

the vehicle and detained Torres.

A female police officer spoke to mother before letting her take the victim home.

When mother was told about the allegations against Torres, she appeared to be upset and

denied that anything had happened. The officer informed the mother about the forensic

interview of the victim scheduled for the next day and instructed mother not to talk to the

victim about the allegations.

The victim testified that mother drove her home. On the way, mother stopped at a

store, where she met the victim's two aunts. The victim testified her mother yelled at her

and said she lied about the touching. Mother and the victim's aunts told her the touchings

were just dreams.

The victim also testified that, when they got home, mother angrily told her that

everything that happened was her fault, and it was "only nightmares." Mother told the

victim to tell the authorities she was just having nightmares, so that Torres could come

home. That night, while mother was watching her, the victim wrote a two-page

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recantation letter saying she had just been having nightmares. Mother then read the

letter. The victim testified she decided to write the letter because "[she] didn't want [her]

mom to be mad at [her] anymore."

First recorded forensic interview of the victim (October 17, 2012)

The next day, Wednesday, October 17, 2012—just before her forensic interview—

the victim gave to Detective Dickinson at the Chadwick Center at Rady's Children's

Hospital the recantation letter she had written after her mother told her that what had

happened to the victim was not real and was only nightmares.

Laurie Fortin (Fortin), a forensic interviewer at the Chadwick Center, then

interviewed the victim. The audio recording of the interview was played for the jurors,

who were given copies of the transcript of the interview.

During the interview, the victim told Fortin that a couple of days earlier Torres

shook her leg to wake her up because she was having nightmares. She said she had asked

the detective if she could get help from the hospital because every day she was "hav[ing]

nightmares where [she] feel[s] someone breathing and someone touching [her]." The

victim told Fortin she had been having these nightmares since she was eight years old.

The victim also said she did not know who was touching her in her nightmares. She told

Fortin she only saw her stepdad one time when he woke her up. She also said she wrote

the letter she had just given to Detective Dickinson "cause [she] needed help."

The victim also told Fortin that she wrote the letter "last night" when she was

alone in her room. The victim said that, before she wrote the letter, she woke up because

she felt someone touch her and she ran to the bathroom and then told her mom. Mother

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told her it was "just [her] imagination." The victim said that "[n]othing" happened in the

car the day before when mother drove her home, and she "just stayed quiet" in the car

while doing her homework. She told Fortin she was living on Craigie Street, and three

times a week she was having the nightmare about somebody breathing and touching her.

She said these nightmares started when she was living in Lakeside, but she had them less

often then.

Fortin told the victim she had spoken with Detective Dickinson, and he said the

victim had told him about her stepdad touching her chest. The victim acknowledged she

had "told him about that," and then told Fortin, "[B]ut like now I know it wasn't him."

Detective Dickinson's second recorded interview of the victim (October 18, 2012)

On Thursday, October 18, 2012, the day after the forensic interview at the

Chadwick Center, Detective Dickinson again interviewed the victim briefly at her school

in Hernandez's office. The audio recording of the interview was played for the jurors,

who were given copies of the transcript of the interview.

During the interview, Detective Dickinson told the victim he had learned she was

cutting her arm and wanted to know why. The victim told him she was cutting her arm

because of "[p]ressure" from "[y]ou guys." Detective Dickinson asked the victim when

she cut her arm, and she replied, "Like Friday" (October 12). Detective Dickinson

responded, "Okay, but you didn't know me on Friday," and added, "So I couldn't have

caused [pressure]." The victim said, "I know," and then told him, "But like, now I have a

lot of pressure."

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 Detective Dickinson testified that he took a photograph during the interview of the

16 cuts on the inner side of the victim's left forearm, then took her into protective custody

and had her transported to the Polinsky Children's Center. The victim did not want to go

there and became emotional. At the Polinsky Children's Center, Detective Dickinson

tried to calm her by telling her she could still attend her same school and the social

worker would try to make her routine as normal as possible. Detective Dickinson

testified that the victim did not ask to live with mother. He also testified that he told the

victim that he and Fortin believed "[her] first story," and the victim replied, "You and my

friends are the only ones that believe me." The victim's demeanor then changed and she

seemed happy. Detective Dickinson testified "she was completely different" and "she

went from frowning to smiling."

Fortin's second recorded forensic interview of the victim (October 23, 2012)

Fortin conducted a second forensic interview of the victim on Tuesday, October

23, 2012. A video recording of the interview was played for the jury.

During the interview the victim said she was living at the Polinsky Children's

Center. When Fortin asked her, "How is it?," she replied, "Fun." When Fortin told the

victim she (the victim) was feeling bad the last time they met because her stepdad had

gone to jail and her mother was upset, the victim replied, "The whole world was upset."

Fortin asked whether she was still feeling bad, and the victim replied, "No," indicating

that the Polinsky Children's Center had helped her to feel better.

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 The victim told Fortin that Torres began touching her when she was "like [10]."

The last time he touched her was about two weeks earlier. She said he grabbed her leg

and "that's when I saw him."

Fortin asked the victim to tell her about the other times Torres touched her. The

victim replied, "I would be sleeping, but I'm not dumb." She added that she could "feel

everything." She said she would hear the door creaking as it opened. The victim then

told Fortin that, when she heard the noise, she "would just, like, open my eyes and when

[Torres] saw me open my eyes, he would get out."

When Fortin asked about the touchings, the victim said she "would like act asleep"

when Torres was touching her. When she opened her eyes, Torres would "disappear or

something," but sometimes she would "see him walking out." Torres touched the victim's

"leg muscles," and he also touched her, "in a poking manner, on her stomach."

The victim told Fortin she had told her friend Carolina that she wanted to kill

herself. When Fortin asked the victim why she started cutting herself, she replied,

"because whenever I thought of it, I thought, I just thought my life was ruined." Fortin

asked, "Thought about what?" The victim answered, "You know, about what [Torres]

was doing in the night."

Child Sexual Abuse Accommodation Syndrome Evidence

In addition to testifying for the prosecution as a percipient witness regarding her

observations during her forensic interviews of the victim, Fortin also testified as an expert

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witness.2 She testified that, in the context of child abuse, " 'recantation' is believed to

be . . . a stage of a child's disclosure process for some kids, a minority of kids." She

referenced a study that found three "statistically significant predictors" of recantation

among child sexual abuse victims: (1) an offender who is "a parental figure,

typically . . . a father figure, mom's boyfriend, stepfather"; (2) "a nonsupportive primary

caretaker, which was the moms [sic] in 90 percent of the cases"; and (3) the child's age.

Fortin also testified about "delayed disclosure" in the child abuse arena. She told

the jury that "the majority of kids actually delay in disclosing abuse." She testified that

studies show children do not exhibit any particular mannerisms or behavior when they

disclose sexual abuse. She also discussed literature that suggests older children—ages 10

years "up to teens"—are more likely than younger age children to disclose abuse to their

peers. Fortin also testified that a child who has received negative feedback after

disclosing abuse might recant but then "reaffirm" the initial disclosure after receiving

positive feedback.

Torres's prior sexual offenses (Pen. Code, § 288(a))

The parties stipulated that in February 2002 Torres was charged under Penal Code

section 288(a) with 26 counts of committing lewd and lascivious acts on a child under the

age of 14 years between 1989 and 1999. Those offenses involved Torres's two

stepdaughters from a prior marriage, V. and G.

2 In his appellant's opening brief, Torres notes that Fortin testified as an expert
witness on child sexual abuse accommodation syndrome.
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 The parties also stipulated that in May 2002 Torres pleaded guilty to committing

three of those counts against V. and three of those counts against G. and that the

remaining charges were dismissed.

As discussed more fully, post, V., G., and retired San Diego Police Department

Detective James McGhee all testified about Torres's prior Penal Code section 288(a)

sexual offenses against V. and G.

The defense case

C.C., Jr., the victim's 15-year-old brother, testified for the defense. He testified

that his and the victim's older brother, G.C., did not like it when Torres moved in with

them, so G.C. went to live with their father.

C.C., Jr. testified that he and the victim had shared a bedroom in the Lakeside

house for five or six months. During the rest of that year the victim shared the bedroom

with their sister, K.C. C.C., Jr. testified he knew Torres was a sex offender, but during

the time he shared the bedroom with the victim he never saw or heard Torres enter the

bedroom late at night. He never heard Torres climb into the victim's bed and molest her,

and he never woke up and saw Torres running from the bedroom.

C.C., Jr. also testified that he did not share a bedroom with the victim at the Home

Avenue apartment, where they lived next for about a year and a half. The victim and

K.C. shared a bedroom and slept in the same queen-size bed. While they lived there,

C.C., Jr. never heard Torres walking into the victim and K.C.'s bedroom late at night.

C.C., Jr. further testified that when he and his family moved to the Craigie Street

address, where they lived for about a year, he shared a bedroom with the victim and they

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each slept in one of the bunk beds. The beds were separated after two months and placed

about five feet apart. He and the victim used a towel to keep the door shut. Opening the

door made a thumping noise. In C.C., Jr.'s opinion, the victim had a reputation for being

dishonest.

K.C., the victim's 19-year-old sister, testified that she first met Torres in around

2007 before she and her family moved to the Lakeside house. Before they moved there,

mother told her that Torres was a registered sex offender.

K.C. testified that Torres never made any inappropriate comments or gestures

toward her during the time they lived in Lakeside. When she and the victim shared a

bedroom in the Lakeside house for about six months, they pushed their twin beds

together to make more room. The victim always slept by the wall, so someone would

have to climb over K.C. to get next to the victim. She never woke up in the middle of the

night and noticed Torres climbing over her to get to the victim.

K.C. testified that she shared a bedroom with the victim at the Home Avenue

apartment, and they slept in the same queen-size bed in a corner of the room. The victim

slept against the wall. She never noticed Torres come into the bedroom in the middle of

the night, climb into the bed, and start rubbing and touching her sister. She never woke

and noticed Torres in the bedroom.

K.C. also testified she had her own bedroom when they moved to the Craigie

Street address. She never heard a thump in the victim and C.C., Jr.'s room. In her

opinion, the victim had a reputation for being dishonest.

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 The father of G.C., K.C., C.C., Jr. and the victim also testified for the defense. In

his opinion, the victim had a reputation for being dishonest.

DISCUSSION

I. ADMISSION OF EVIDENCE OF TORRES'S PRIOR SEXUAL
OFFENSES (§§ 1108, 352)

Torres first contends all four of his convictions should be reversed, and the case

should be remanded for a new trial, because the court abused its discretion under sections

1108 and 352, and violated his federal Constitutional right to due process, by admitting

into evidence "irrelevant and highly inflammatory details" of his prior sexual

molestations of his stepdaughters from his prior marriage. We conclude the court did not

abuse its discretion and did not commit constitutional error.

A. Background

1. In limine proceedings

The prosecution filed a trial brief setting forth the facts underlying Torres's prior

Penal Code section 288(a) convictions for the sexual offenses he committed against V.

and G., as well as the facts it intended to prove regarding the current charged offenses

against the victim. The prosecution also filed a motion to admit evidence of her

disclosures to her friends, school counselor, law enforcement officers, and the forensic

interviewer at the Chadwick Center. Citing People v. Falsetta (1999) 21 Cal.4th 903

(Falsetta) (discussed, post), Torres filed a motion in limine to exclude under section 352

the evidence of his prior sexual offenses.

21
 At the hearing on the motions, defense counsel acknowledged that the court "ha[d]

latitude" in admitting the evidence under section 1108 and urged the court to exclude the

evidence of the prior sexual offenses after conducting an analysis under section 352.

Torres's counsel stated: "I think the two convictions in his prior case are extremely

prejudicial. And my fear is that, if the jury hears these two witnesses [(V. and G.)] testify

as to what happened . . . between 1992 and 1997, I believe . . . it's going to definitely

evoke an emotional bias with the jury."

Defense counsel also asserted that, although Torres pleaded guilty to the crimes

against V. and G., for purposes of section 352 his conduct was "pretty remote in time"

and "at least one of the victims [was] going to testify that there was penetration

involved," which would be "extremely prejudicial," especially in a case like this which

involved no penetration, only touching beneath the victim's clothing on her legs and

stomach.

The prosecutor opposed Torres's in limine motion, arguing that the evidence of

Torres's prior offenses was admissible:

"Your Honor, [there are] multiple reasons why we believe that those
prior incidents should come in, both under section 1101 and 1108.

"[Section] 1108 allows us to argue propensity. And I think it's pretty
established why that evidence is extremely probative[.] [W]ith
respect to the [section] 1101 aspect of it, [Torres], through his prior
acts—it will help the jury understand his intent when it comes to
some relatively minor touching on the scale of [Penal Code section]
288's.

"It also demonstrates a motive and then, also, an opportunity to
commit the crimes. All three of these girls [(V., G., and the

22
 victim)]—two of them now women—were stepdaughters of
[Torres], who lived inside his home.

"Most of these acts occurred in the early morning hours, when
[Torres] would get up . . . to go to work. And so I think there are
sufficient similarities between the two of them to allow the
introduction [of the evidence] not only under [section] 1108 but,
also, under [section] 1101.

"There may also be an argument by [Torres] that, because our
current victim had roommates, that these were all imagined events,
when, clearly, in the prior case, these two prior victim stepdaughters
were roommates when a lot of molests occurred. And, in
fact, . . . one of them saw the abuse happen to the other victim.

"So, for all of those reasons, that evidence is extremely probative
and outweighs any undue prejudice."

a. Court's ruling

The court denied Torres's motion to exclude the evidence of his admitted

uncharged prior crimes against V. and G., stating:

"After weighing and balancing under [section] 352, I am finding that
the probative value outweighs any unduly prejudicial effect, given
the reasons and arguments as set forth in the papers and responses to
the in limine motions.

"And I have given this issue a lot of thought over the lunch hour. It
seems to me that it's a critical issue . . . in all of the motions that
were filed.

"I think, under the [section] 1108 analysis, it's clearly relevant, as
well as under the [section] 1101 analysis. And I have weighed,
under . . . section 352 . . . as required.

"And I find the arguments that are set forth in the People's papers are
persuasive."

23
 2. The propensity evidence (§ 1108) of Torres's prior lewd acts

a. Stipulations

As previously noted, the parties stipulated at trial that Torres was charged in

February 2002 under Penal Code section 288(a) with 26 counts of committing lewd and

lascivious acts on a child under the age of 14 years between 1989 and 1999. Those

offenses involved Torres's two stepdaughters, V. and G. The parties also stipulated that

Torres pleaded guilty in May 2002 to committing three of those counts against V. and the

other three counts against G. and that the remaining charges were dismissed.

V., G., and retired San Diego Police Department Detective James McGhee all

testified about Torres's prior sexual offenses against V. and G.

b. V.'s and G.'s testimony

V. was 30 years of age when she testified in this case. She testified that her

mother started dating Torres when V. was five or six years old. G. is one year younger

than V. The two sisters shared a room and slept in bunk beds. V. and G.'s mother

worked very early in the morning and left for work by about 4:00 a.m. Torres left at

around 7:00 a.m.

She testified that when she was six years old Torres came into her bedroom early

one morning after her mother went to work. He picked V. up, carried her to her mother's

room, and caressed her legs and thighs. V. testified that, when she fully awoke, Torres

"let [her] go" and she went back to her bedroom. She did not tell anyone about the

touching. The touching continued about two times each week, sometimes in V.'s

mother's room and sometimes in V. and G.'s room. V. testified she did not tell anyone

24
because Torres threatened to hurt her mother if she told anyone. He threatened her more

than one time. V. testified that Torres's threat scared her. He then started to touch her

more often.

V. also testified that Torres started molesting her when she turned seven. He

undressed V., her mother was at night school learning English, Torres had sent V.'s

siblings to the store, and V. had stayed with him. Torres took off her pants and

underwear and rubbed her vagina with his fingers in the living room. Torres undressed

himself and touched her genitalia with his own.

V. testified she has tried to forget what happened to her. She did not remember if

it hurt when Torres touched her vagina, and she did not know whether he ejaculated.

V. also testified that Torres would enter her and G.'s bedroom, undress her, and

rub his genitalia against hers while G. was also in the bedroom. He stopped molesting V.

in around 1996 when she turned 13, shortly before she started menstruating.

G. was 29 years of age when she testified in this case. She testified that Torres

began touching her when she was around eight years old. The first touching occurred in

the middle of the night while she was sleeping in the bedroom she shared with her sister,

V. She woke up and found Torres under the blankets, between her spread legs, touching

and fondling her "privates" with his hands. Torres told G., who was very scared, to be

quiet or he would "hurt [her] mom." Torres touched her for 20 or 30 minutes. V. was in

the same bed, but she did not wake up.

G. also testified that, over the years, Torres repeatedly touched and fondled her

breasts and "behind," and he would caress her legs and "just slowly move up higher and

25
higher." Sometimes he digitally penetrated G.'s genitals. The sexual molestation

continued until G. turned 15. G. eventually told V.

V. testified that when she learned that Torres had also molested G. she told their

mother. Their mother did not believe them. V. and G. then ran away and stayed at G.'s

boyfriend's house. V., who was then 18 years of age, reported the abuse to the police

about two weeks later after their mother called the police and accused her of taking G.

away.

c. Detective McGhee's testimony and the video recording of his interview of
Torres

Detective McGhee testified that he interviewed Torres in 2002 about the

molestations of V. and G. A video recording of the interview was played for the jurors,

who were given copies of the transcript of the interview.

During the interview Torres, after he was read his Miranda3 rights and he waived

those rights, admitted he started sexually molesting V. when she was about seven years

old. He also admitted he put his penis in V.'s vagina when she was seven years old. He

told the detective he did not use a condom, but he ejaculated outside of her.

Torres told Detective McGhee that "one of those times" he "didn't penetrate [V.]

all the way" because he woke up, found V. in his bed, and mistook her for his wife.

Detective McGhee asked him, "Well, how does a man not know it's his wife, but his

seven year old daughter until he has his erect penis, and he's, practically, stickin' it in her

vagina, then he realizes it's not his wife?" Torres replied, "I was half asleep."

3 Miranda v. Arizona (1966) 384 U.S. 436.
26
 Torres then claimed the second incident happened when he went to wake up V.

and G. and they asked him to lie next to them in their bed. He told the detective that he

fell asleep. McGhee asked Torres, "[A]t some point, you had sex with her, right? Or,

both of 'em?" Torres replied, "Yeah." Torres said he never put his penis inside G.'s

vagina. Torres admitted he touched V. more than once a month.

Detective McGhee told Torres, "[V.] said . . . you raped her about 20, 25 times."

Torres replied, "Raped her?" Detective McGhee said, "that's what she considered it," and

then asked Torres, "What do you consider it? . . . [W]hat do you call a 27 year old man

having intercourse with a [seven] year old girl?" Torres answered, "Yeah, I would say

rape[.] I know that's what it looks like."

B. Applicable Legal Principles

1. Sections 1108 and 352

As a general rule, evidence of a person's character is inadmissible to prove conduct

on a specific occasion. (§ 1101, subd. (a) (hereafter § 1101(a); People v. Ewoldt (1994) 7

Cal.4th 380, 393.) Thus, evidence of other crimes or bad acts is generally inadmissible

when it is offered to show a defendant had the criminal disposition or propensity to

commit the crime charged. (Ibid.)

However, an exception to this rule is set forth in section 1108, which provides that

"[i]n 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 Section 1101, if the evidence is not inadmissible pursuant to Section

352." (§ 1108, subd. (a), hereafter (§ 1108(a); People v. Nguyen (2010) 184 Cal.App.4th

27
1096, 1115-1116.) In Falsetta, supra, 21 Cal.4th 903, the California Supreme Court

explained the legislative purpose of section 1108:

"[T]he Legislature enacted section 1108 to expand the admissibility
of disposition or propensity evidence in sex offense cases. . . . [¶]
Available legislative history indicates section 1108 was intended in
sex offense cases to relax the evidentiary restraints section 1101[(a)]
imposed, to assure that the trier of fact would be made aware of the
defendant's other sex offenses in evaluating the victim's and the
defendant's credibility." (Falsetta, at p. 911.)

Section 1108 allows admission, in a criminal action in which the defendant is

accused of one of a list of sexual offenses, of evidence of the defendant's commission of

another listed sexual offense that otherwise would be made inadmissible by section

1101(a). (See § 1108, subds. (a), (d)(1).) Furthermore, the uncharged and charged

offenses are considered sufficiently similar if they are both sexual offenses enumerated in

section 1108. (People v. Frazier (2001) 89 Cal.App.4th 30, 41.)

Accordingly, here, evidence that Torres committed a prior lewd or lascivious act

upon a child under the age of 14 years in violation of Penal Code section 288—one of the

enumerated sexual offenses listed in subdivision (d)(1)(A) of section 1108—was

admissible to prove he had a propensity to commit the relevant charged and listed

offenses of which he ultimately was convicted in this case (counts 1-4: Pen. Code,

§ 288(a)) unless that evidence was inadmissible under section 352. (§ 1108, subd. (a).)

As the Supreme Court stated in Falsetta, supra, 21 Cal.4th 903, in determining

whether to admit section 1108 propensity evidence of a defendant's prior sexual offense,

trial courts "must engage in a careful weighing process under section 352" by

"consider[ing]" various "factors" (hereafter referred to as the Falsetta factors),

28
"such . . . as its nature, relevance, and possible remoteness, the degree of certainty of its

commission and the likelihood of confusing, misleading, or distracting the jurors from

their main inquiry, its similarity to the charged offense, its likely prejudicial impact on

the jurors, the burden on the defendant in defending against the uncharged offense, and

the availability of less prejudicial alternatives to its outright admission, such as admitting

some but not all of the defendant's other sex offenses, or excluding irrelevant though

inflammatory details surrounding the offense." (Falsetta, supra, at p. 917.) The Falsetta

court held that section 1108 does not violate due process principles, and, thus, is

constitutionally valid, because it subjects evidence of uncharged sexual misconduct to the

weighing process of section 352 in sex crime prosecutions. (Falsetta, supra, at pp. 907,

917-918, 922.)

Under section 352, which is referenced in section 1108, evidence is properly

excluded if its probative value is "substantially outweighed" by the probability that its

admission will necessitate undue consumption of time, or create a substantial danger of

undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; People v.

Cudjo (1993) 6 Cal.4th 585, 609.) A decision to exclude evidence under section 352

comes within the trial court's broad discretionary powers and "will not be overturned

absent an abuse of that discretion." (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)

The prejudice that exclusion of evidence under section 352 is designed to avoid "is

not the prejudice or damage to a defense that naturally flows from relevant, highly

probative evidence. '[All] evidence which tends to prove guilt is prejudicial or damaging

to the defendant's case. The stronger the evidence, the more it is "prejudicial." The

29
"prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to

evoke an emotional bias against the defendant as an individual and which has very little

effect on the issues. In applying section 352, "prejudicial" is not synonymous with

"damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence

should be excluded as unduly prejudicial when it is of such nature as to inflame the

emotions of the jury, motivating them to use the information, not to logically evaluate the

point upon which it is relevant, but to reward or punish one side because of the jurors'

emotional reaction.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286.)

2. Standard of review

On appeal, we review the trial court's admission of section 1108 evidence,

including its section 352 weighing process, for abuse of discretion. (People v. Dejourney

(2011) 192 Cal.App.4th 1091, 1104-1105; People v. Miramontes (2010) 189 Cal.App.4th

1085, 1097.) "We will not find that a court abuses its discretion in admitting such other

sexual acts evidence unless its ruling ' "falls outside the bounds of reason." ' " (People v.

Dejourney, at p. 1105.) Alternatively stated, we will not reverse a trial court's exercise of

discretion under sections 1108 and 352 unless its decision was arbitrary, capricious or

patently absurd and resulted in a manifest miscarriage of justice. (People v. Lewis (2009)

46 Cal.4th 1255, 1286; People v. Nguyen, supra, 184 Cal.App.4th at p. 1116.)

C. Analysis

Torres has failed to meet his burden of showing the court abused its discretion or

violated his right to a fair trial by admitting, under sections 1108 and 352, the evidence

that he previously had committed and been convicted of lewd acts upon his stepdaughters

30
V. and G., who were then children under the age of 14 years. We first conclude that

Torres has failed to show the court's decision to admit this highly relevant propensity

evidence was arbitrary, capricious or patently absurd. (See People v. Lewis, supra, 46

Cal.4th at p. 1286.) In his in limine motion Torres had urged the court, after considering

the Falsetta factors (see Falsetta, supra, 21 Cal.4th at p. 917), to exclude this evidence as

unduly prejudicial within the meaning of section 352. In announcing its determination

that the evidence was admissible, the court explained it had given this "critical" issue "a

lot of thought" and had "weigh[ed] and balanc[ed]" the probative value of this evidence

against its prejudicial effect as it was required to do under section 352. In denying

Torres's in limine motion, the court found that "the probative value outweigh[ed] any

unduly prejudicial effect."

The court did not abuse its discretion in making this determination. For purposes

of section 352 most of the Falsetta factors weigh in favor of the admissibility of the

challenged propensity evidence the court admitted in this case. Specifically, regarding

the nature and relevance of the prior sexual offenses (see Falsetta, supra, 21 Cal.4th at p.

917), the challenged evidence here of Torres's prior offenses is highly probative on the

issue of whether he is sexually attracted to young children and would have had an interest

in engaging in sexual acts with the victim, who testified that Torres began molesting her

when she was seven or eight years old. The victim was 12 years old when she testified at

trial in this matter.

The evidence is also highly probative with respect to the critical issue of the

credibility of not only the victim, but also of Torres, whose defense was that he did not

31
sexually molest her. As noted, the legislative history of section 1108 indicates that

section 1108 was intended in sex offense cases to relax the evidentiary restraints of

section 1101(a) "to assure that the trier of fact would be made aware of the defendant's

other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta,

supra, 21 Cal.4th at p. 911.) Here, a principal theory of the defense at trial was that the

victim lied about the sexual molestations Torres was accused of committing. Torres

presented several witnesses who testified that the victim had a reputation for being

dishonest. On appeal, Torres particularly complains about the admission of detailed

propensity evidence that he asserts was "highly irrelevant and inflammatory." As Torres

raised the critical evidentiary issue of whether the victim dishonestly and falsely accused

him of molesting her from the time she was seven or eight years old, detailed propensity

evidence showing that Torres began sexually molesting his other stepdaughters, V. and

G., at similar ages was highly probative with respect to the issue of his and the victim's

credibility and was admissible despite any prejudicial effect that necessarily resulted

from the admission of such evidence. As already discussed, the prejudice that exclusion

of evidence under section 352 is designed to avoid "is not the prejudice or damage to a

defense that naturally flows from relevant, highly probative evidence. '[All] evidence

which tends to prove guilt is prejudicial or damaging to the defendant's case. The

stronger the evidence, the more it is "prejudicial." ' " (People v. Karis, supra, 46 Cal.3d

at p. 638.)

Another Falsetta factor is the degree of certainty the defendant committed the

uncharged prior sexual offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) Here, there is no

32
uncertainty as to whether Torres committed the uncharged sexual offenses against V. and

G. He stipulated at trial that he pleaded guilty in May 2002 to committing three of those

six offenses against V. and the other three against G.

Another Falsetta factor is the likelihood of confusing, misleading, or distracting

the jurors from their main inquiry. (Falsetta, supra, 21 Cal.4th at p. 917.) Here,

particularly in light of the undisputed fact that he admitted he committed the prior sexual

offenses, Torres has not shown, and cannot demonstrate, a likelihood that the admission

of the section 1108 evidence misled, confused, or distracted the jurors from their main

inquiry into whether he was guilty or innocent of the current charged offenses. Although

the prosecutor had estimated that the presentation of the propensity evidence would take

"about a day," the record shows that it took a little over an hour to present V.'s and G.'s

testimony and play the video recording of Torres's 2002 police interview. Specifically,

V. and G. each testified for only about 18 minutes, and the playing of the video recording

for the jury took about 30 minutes.

Another Falsetta factor is the similarity of the uncharged prior sexual offenses to

the current charged offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) Here, the detailed

propensity evidence admitted under section 1108 shows the uncharged prior sexual

offenses and the current charged offenses are very similar in that all three victims (V., G.,

and the current victim) were Torres's stepdaughters who lived in his home, the sexual

touching always happened early in the early morning hours before Torres left for work,

the touchings would sometimes happen even if a sibling of the victim was present in the

33
same room, and the testimony of the victims shows Torres began molesting them at

around the same young age of seven or eight years.

We note that the detailed propensity evidence was particularly probative because,

as the Attorney General correctly points out, it tended to dispel the defense theory that it

would have been impossible for Torres to molest the victim without being seen by

siblings sleeping in the same bedroom. For example, the victim's sister, K.C., testified

that she and the victim slept in twin beds that were pushed together in the bedroom they

shared in the Lakeside house and the victim always slept by the wall, so that someone

would have to climb over K.C. to get next to the victim. K.C. also testified she never

woke up in the middle of the night and noticed Torres climbing over her to get to the

victim. During closing arguments, defense counsel essentially argued it was impossible

for Torres to molest the victim while she slept against the wall on the other side of her

sister K.C. Defense counsel also argued that K.C. and C.C., Jr. "were in the room [with

the victim] every single time. [¶] So how did it happen?" The detailed propensity

evidence was highly probative because it showed that Torres's first two stepdaughters

always slept together in the same room and Torres repeatedly molested them while they

slept in the same room.

Another Falsetta factor is the "possible remoteness" of uncharged prior sexual

offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) Here, as noted, Torres was convicted of

the prior sex offenses in 2002. During the hearing on Torres's motion in limine to

exclude the propensity evidence, defense counsel argued the evidence of the prior sexual

offenses should be excluded because, "if we look at when the conduct occurred in this

34
case, in the [19]90's, I think that it's pretty remote in time." Here, the victim testified

Torres began molesting her when she was seven or eight years old—around 2007 or

2008. However, the passage of the years between Torres's admitted commission of his

sexual offenses against V. and G. and his commission of the charged current offenses

does not militate against admission of the propensity evidence. "No specific time limits

have been established for determining when an uncharged offense is so remote as to be

inadmissible." (People v. Branch (2001) 91 Cal.App.4th 274, 284.) The "significant

similarities between the prior and the charged offenses" make the remoteness factor less

important. (See id. at p. 285; see also People v. Waples (2000) 79 Cal.App.4th 1389,

1395 [uncharged sexual offenses involving the same victim occurring between 15 and 22

years before trial not found too remote, in part because the similarities in the prior and

current acts "balanced out the remoteness"].)

It is true, as Torres points out, that the challenged propensity evidence shows his

prior crimes against V. involved repeated rape, whereas the current charged offenses did

not involve any penetration. The record shows that when the victim was asked at trial

whether Torres touched her vaginal area, she answered, "Somewhat," but she did not

testify to any actual penetration. However, because the details of Torres's prior sexual

offenses against his first two stepdaughters were highly probative on the critical issue of

the victim's credibility as the accusing witness, which Torres's trial counsel so vigorously

attacked, we conclude the court properly found "the probative value [of the propensity]

evidence outweigh[ed]" its prejudicial effect.

35
 For all of the foregoing reasons, we conclude the court did not abuse its discretion

in admitting the section 1108 evidence of the uncharged sexual offenses against V. and

G.

II. RELATED CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

In a related claim Torres contends that, "if this Court determines that the trial court

did not abuse its discretion by admitting the prior-sex-offense evidence without

limitation," his convictions should be reversed and the matter remanded for retrial

because his trial counsel provided ineffective assistance by failing to make "fact-specific

objections" to exclude "irrelevant and highly inflammatory details" of his prior sexual

molestations of V. and G. We reject this contention.

A. Applicable Legal Principles

The law governing Torres's claim of ineffective assistance of counsel is settled. A

criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S.

668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979 (Frye).) To

establish a denial of the right to effective assistance of counsel, a defendant must show

(1) his or her counsel's performance was below an objective standard of reasonableness

under prevailing professional norms, and (2) the deficient performance prejudiced the

defendant. (Strickland, at pp. 687-688, 691-692; Frye, at p. 979.)

To demonstrate prejudice, a defendant asserting an ineffective assistance claim on

appeal must show a reasonable probability he or she would have received a more

favorable result had counsel's performance not been deficient. (Strickland, supra, 466

36
U.S. at pp. 693-694; Frye, 18 Cal.4th at p. 979.) "A reasonable probability is a

probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)

Strickland explained that "[j]udicial scrutiny of counsel's performance must be

highly deferential [because] [i]t is all too tempting for a defendant to second-guess

counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,

examining counsel's defense after it has proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689,

italics added.) Strickland also explained that reviewing courts "must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial strategy.' " (Ibid.)

The California Supreme Court has explained that " '[w]hen a defendant makes an

ineffectiveness claim on appeal, the appellate court must look to see if the record contains

any explanation for the challenged aspects of representation.' " (People v. Kelly (1992) 1

Cal.4th 495, 520.) "A reviewing court will not second-guess trial counsel's reasonable

tactical decisions." (Ibid.)

B. Analysis

Applying a highly deferential standard of scrutiny and indulging a strong

presumption that the conduct of Torres's trial counsel fell within the wide range of

reasonable professional assistance, as we must (Strickland, supra, 466 U.S. at p. 689), we

reject Torres ineffective assistance of counsel claim because his trial counsel's tactics

with respect to the question of the admissibility of the detailed section 1108 propensity

37
evidence (discussed, ante) of Torres's prior sexual offenses were reasonable tactical

decisions that this court will not second-guess. (See People v. Kelly, supra, 1 Cal.4th at

p. 520.)

Torres complains that, "[a]t the in limine hearing, defense counsel should have

specifically requested that the prior-sex-offense evidence be redacted or sanitized to

exclude irrelevant and highly inflammatory details." He also complains that his trial

counsel "should have objected to particular points in [V.'s] and [G.'s] testimony

under . . . section 352, and requested that any testimony given be stricken." He further

asserts that his counsel "should have asked to redact highly inflammatory portions of the

video recording of [his] 2002 interrogation, especially [his] admissions to raping seven-

year-old [V.] and [Detective McGhee's] prejudicial comments." We have set forth, ante,

all of the challenged evidence that Torres asserts was "irrelevant and highly

inflammatory."

Torres's assertions are unavailing because the record shows his trial counsel made

reasonable and concerted efforts to exclude the challenged evidence. We have already

discussed defense counsel vigorous efforts to persuade the court during the in limine

proceedings to exclude the evidence of Torres's prior sexual offenses against V. and G.,

including the specific evidence at issue here. Torres discussed all of the Falsetta factors

(see Falsetta, supra, 21 Cal.4th at p. 917) in his unsuccessful motion in limine to exclude

under section 352 the evidence of his prior sexual offenses.

Defense counsel made additional efforts to exclude this evidence and was

successful in persuading the court to exclude some of it. After V. testified, and just

38
before the prosecution called G. as a witness, defense counsel renewed his objections

under section 352 to the admission of Detective McGhee's recorded 2002 interview of

Torres containing Torres's admissions regarding his sexual offenses against V. and G.

Specifically, defense counsel argued the evidence was not relevant and "[it was] more

prejudicial than . . . probative" for purposes of section 352. He also argued that "these

[Penal Code section] 1108 witnesses [(V. and G.) were] testifying," and he asserted that

"this taped interview becomes less and less relevant" because of "the fact that we have

entered a stipulation that [Torres] did plead guilty to these charges."

The court found that Torres's intent was "an issue in the new case," and the

information in the recorded interview was relevant to the issue of Torres's intent. Under

its section 352 "weighing and balancing" analysis, the court found that "most of this

[evidence] is admissible" because "the probative value outweighs any overly prejudicial

effect." However, demonstrating it was familiar with the contents of the transcript, the

court found that the last paragraph on page 18 and all of pages 19 and 20 were "not

relevant to anything" and ordered these portions of the transcript redacted. The court

directed the prosecutor to "redact the tape" and instructed him to only "play [the

recording] up to that point."

In light of these reasonable efforts by defense counsel to exclude what Torres

refers to as "irrelevant and highly inflammatory" evidence of his sexual molestations of

V. and G., we conclude Torres has failed to meet his burden of demonstrating his trial

counsel's performance was constitutionally deficient.

39
 III. INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE
TO MOVE FOR A MISTRIAL)

Torres next contends his convictions should be reversed and the matter remanded

for retrial because his trial counsel provided ineffective assistance—after the panel of

prospective jurors was informed of Torres's prior sexual offenses—by failing to move for

a mistrial after prospective juror No. 90, a neuroscientist who stated she had had expertise

in "fear, rage, and attraction," allegedly "tainted the entire jury venire with bias" by

stating that she would probably add bias to the jury because people are "likely to repeat

their behavior." We reject this contention.

A. Background

During the voir dire, the court advised the jury venire that Torres was charged

with four counts of committing a lewd and lascivious upon the victim, a child under 14

years of age. The court thereafter advised the prospective jurors that Torres previously

had been convicted of the same offense. Several potential jurors indicated they could not

be fair.

On the second day of jury selection, defense counsel asked the jury venire whether

there was "anything about this case that you tell yourself, 'I can't do it[']?" Prospective

juror No. 90 responded:

"Yeah. I'm a neuroscientist, and I . . . specialize in fear, rage and
attraction. So I have special expertise.

"And . . . I come in with bias, and I have special expertise. And I
would probably add bias to the jury. I'm a very strong person. And
I think I would be able to—" (Italics added.)

40
 Defense counsel interjected, stating: "When you say you would 'add bias—' "

Prospective juror No. 90 responded:

"From my professional expertise as well as the experiences that I
mentioned yesterday, personal experiences with the issue.

"So, from that, I mean, my professional expertise allows me to add
extra weight to why, you know, someone was previously—they are
not like a coin. They're likely to repeat their behavior." (Italics
added.)

Shortly thereafter the prosecutor and defense counsel jointly moved to dismiss

prospective juror No. 90 for cause, and the court granted the motion. It is undisputed that

defense counsel did not move for a mistrial based on prospective juror No. 90's remarks.

B. Analysis

Torres has failed to meet his burden of demonstrating his counsel's performance

was deficient. In support of his claim that his trial counsel provided constitutionally

ineffective assistance by failing to move for a mistrial based on prospective juror No. 90's

statements, Torres asserts those statements "infected the entire panel with bias, violating

[his] Sixth Amendment right to an impartial jury." Specifically, he asserts the statements

"tainted" the entire panel because prospective juror No. 90, whom the court ultimately

struck for cause from the panel of prospective jurors, "repeatedly referred to herself as

having 'expertise' " and "told the panel that sex offenders 'are not like [the flip of] a coin,'

because they are 'likely to repeat their behavior.' " Relying on People v. McFarland

(2000) 78 Cal.App.4th 489 (McFarland) for the proposition that "expert testimony

regarding recidivism and sexual propensity is highly prejudicial" (italics added), Torres

asserts that, "[u]nder McFarland, Prospective Juror [No. 90's] expert statement was

41
highly prejudicial, and therefore infected the entire jury venire with bias." (Italics

added.)

These assertions and Torres's reliance on McFarland are unavailing. Nothing in

the record supports his assertion, which is speculative at best, that prospective juror No.

90's statements during voir dire "infected the entire panel with bias."

Torres's reliance on McFarland is misplaced. "[C]ases are not authority for

propositions not considered." (People v. Brown (2012) 54 Cal.4th 314, 330.) Contrary to

Torres's suggestion, McFarland did not consider the issue of whether a prospective juror

who refers to his or her professional expertise in explaining to the court during voir dire

why he or she is biased thereby "infect[s] the entire panel with bias" such that the

defendant's trial counsel has a professional obligation to move for a mistrial. In

McFarland the defendant was charged with annoying or molesting a child under Penal

Code section 647.6, which required proof that his conduct was motivated by an unnatural

or abnormal sexual interest in the victim. (McFarland, supra, 78 Cal.App.4th at p. 494.)

The trial court allowed the prosecution, over a defense objection, to present under section

1108(a) the expert testimony of a forensic psychiatrist who gave his opinion on the

ultimate issue in the case by testifying the defendant was motivated by an unnatural or

abnormal sexual interest in the child victim when he touched her. (McFarland, at pp.

492, 494-495.) The Court of Appeal in McFarland held that section 1108(a) does not

authorize a psychiatrist called as an expert witness to render an opinion about the

defendant's sexual propensity during the prosecution's case-in-chief. (McFarland, at pp.

491, 493.) McFarland is inapposite. Here, unlike the psychiatrist in McFarland,

42
prospective juror No. 90 was not an expert witnesses who testified about the defendant's

sexual propensity during the prosecution's case-in-chief.

Torres also relies on the Ninth's Circuit's decision in Mach v. Stewart (9th Cir.

1997) 137 F.3d 630. His reliance on that case is also misplaced. In Mach the defendant

was charged with sexual conduct with a minor under 14 years of age. (Id. at p. 631.)

During voir dire, the trial court elicited from a prospective juror (1) that she had expertise

in this area in that she had taken child psychology courses, had worked with

psychologists and psychiatrists, and had worked with children as a social worker for at

least three years; and (2) four separate statements that she had never been involved in a

case in which a child accused an adult of sexual abuse where that child's statements had

not been borne out. (Id. at pp. 632-633.) The court then went on to elicit yet another

statement from the social worker that she had never known a child to lie about sexual

abuse. (Id. at p. 633.) Defense counsel brought a motion for mistrial, arguing the entire

panel had been tainted by the exchange between the court and the social worker

venireperson. (Id. at p. 632.) The trial court denied the mistrial motion but excused the

social worker for cause. (Ibid.) On appeal from the denial of the defendant's habeas

corpus petition in federal district court, the Mach court reversed the defendant's

conviction, stating, "[W]e presume that at least one juror was tainted and entered into

jury deliberations with the conviction that children simply never lie about being sexually

abused." (Id. at pp. 632-633.)

Torres's reliance on Mach is unavailing because the instant case is factually

distinguishable in that prospective juror No. 90—unlike the social worker venireperson in

43
Mach—did not make repeated statements that children simply never lie about being

sexually abused. As already noted, prospective juror No. 90 merely stated that, based on

her expertise and experience, she "would probably add bias to the jury" because people

are "likely to repeat their behavior." Even if Mach were not distinguishable, Ninth

Circuit authority is not binding on this court. (People v. Bradford (1997) 15 Cal.4th

1229, 1292.)

Torres's experienced trial counsel was able to properly assess the ability of the

venirepersons to serve as impartial jurors, and we will not second-guess his reasonable

decision that there was no basis to bring a mistrial motion based on prospective juror No.

90's very brief and nontestimonial comments about her personal bias during the jury

selection process. (See People v. Kelly, supra, 1 Cal.4th at p. 520 [reviewing courts "will

not second-guess trial counsel's reasonable tactical decisions."].) In sum, we reject

Torres's ineffective-assistance-of-counsel claim.

IV. COURT'S RESPONSE TO JUROR NOTE NO. 3 (FIRST QUESTION)

Torres also claims that two of his four convictions—either counts 2 and 4 (the

"last-time" counts) or (as the Attorney General suggests) counts 1 and 3 (the "first-time"

counts)—should be reversed because the court lowered the prosecution's burden of proof

and violated his federal Constitutional right to due process when it erroneously responded

to the first of two questions in jury note No. 3 by answering "Yes" to the question of

whether, if the jury were to agree that "one instance" happened, "[that would] also be

both a 'first time' and 'last time.'" As noted, the Attorney General concedes that two of

44
Torres's four convictions—specifically, counts 1 and 3—should be reversed. We

conclude Torres's convictions of counts 1 and 3 must be reversed.

A. Background

1. Counts 1 and 3 (the first-time counts) and counts 2 and 4 (the last-time counts)

As discussed, ante, Torres was charged in this case with four counts of committing

a lewd and lascivious act upon the victim, a child under the age of 14 years, in violation

of Penal Code section 288(a)), and the information alleged he committed each offense

between January 1, 2011 and October 16, 2012. Specifically, in counts 1 and 2 the

information alleged that he touched the victim's legs two times during that time period: a

"first time" (count 1) and a "last time" (count 2). In counts 3 and 4 the information

alleged that Torres touched the victim's stomach two times during that period: a "first

time" (count 3) and a "last time" (count 4). Thus, counts 1 and 3 were the "first-time"

counts, and counts 2 and 4 were the "last-time" counts.

2. The two questions in jury note No. 3 and the court's responses

During deliberations the jury submitted jury note No. 3, which contained two

questions seeking clarification on points of law:

"[Question No. 1:] The charges refer to a 'first time' and 'last time.'
If the jury were to agree that one instance happened, wouldn't that
also be a 'first time' and 'last time'?" (Italics added.)

"[Question No. 2:] Defendant is charged with offenses [o]ccurring
at Craigie Street, Jan. 1, 2011 through Oct. 16, 2012. Does that
[m]ean we are not to consider [e]vents that may or may not have
[o]ccurred at the Lakeside and Home Avenue addresses?" (Italics
added.)

45
 The trial court and counsel discussed the questions and possible responses.

Specifically, when the court received jury note No. 3 it asked for defense counsel's

position. Defense counsel replied that the jury "can't just pick an act and say that was

both the first time and last time because they're two separate charges. I just don't know

how to respond to that question" The prosecutor suggested that the court instruct the jury

that "if the jury finds that only one of those acts occurred, it cannot be both the first and

last one." Defense counsel responded, "I just don't see how we can [answer the jury's

question]."

Implicitly alluding to the date ranges alleged in the information, the court asked,

"[T]he allegation is—the theory of the People's case is that the last time it took place was

at the Craigie Street address[,] correct?" The prosecutor replied, "[Y]es." Agreeing with

the prosecutor, defense counsel stated, "According to the dates [alleged in the

information], the first time is also at the Craigie Street address."

In response the court stated, "Could be [the] Craigie Street address." Agreeing,

the prosecutor stated, "Could be." The prosecutor, however, then stated, "It could be the

Home Avenue address. It wasn't exactly established exactly when they moved to the

Craigie Street address."4 (Italics added.)

4 The trial evidence did establish when the family moved to the Craigie Street
address. Mother testified she and her family lived in the Lakeside house for about one
and a half years, and then they moved into an apartment on Home Avenue. She also
testified they lived in that apartment for most of 2009. The prosecutor then asked
mother, "So you moved into the Craigie Street house in 2010[,] is that right?" Mother
replied, "Yes." As noted, the information alleged that Torres committed all four of the
charged lewd acts between January 1, 2011 and October 16, 2012.
46
 Following further discussion, the court told counsel that "the last time . . . clearly

ha[d] to be [at the] Craigie [Street address]." The court then read out loud the first

question contained in jury note No. 3: " 'If the jury were to agree that one instance

happened, wouldn't that also be both the "first time" and "last time?" ' "

After reading the question, and addressing both the first and second questions

contained in jury note No. 3, the court stated, "The direct answer is 'yes,' but the

allegation of 'last time' refers to events . . . that took place at Craigie Street." The

prosecutor agreed, stating, "Yes. Yes. Or at least during the date range that we've

alleged." Defense counsel responded, "I don't see how we can really answer this

question."

Following further discussion, defense counsel—addressing the jury's second

question in jury note No. 3 (whether "[they were] not to consider [e]vents that may or

may not have [o]ccurred at the Lakeside and Home Avenue addresses?")—indicated the

court should tell the jurors they should consider all of the evidence, including the

evidence of events that may have occurred at the Lakeside and Home Avenue addresses:

"We can't just tell [the jurors] they can't consider . . . the testimony
from Lakeside or the testimony from Home Avenue and just focus
on what happened at Craigie Street. Because they need to consider
everything." (Italics added.)

Agreeing with Torres's counsel, the prosecutor—also addressing the jury's second

question in jury note No. 3—said, "I think the reply [to jury note No. 3] should be, 'You

may consider all of the evidence that was admitted at trial.' " (Italics added.)

47
 a. The court's rulings and responses to the two questions in jury note No. 3

The court then issued its ruling on the response it would give to the first question

contained in jury note No. 3. The court stated:

"So the answer then for [question] number 1 will be 'yes.'

"And then, 'counts 2 and 4 refer to events alleged to have occurred at
the Craigie Street address.' "

Immediately thereafter the court issued its ruling on the response it would give to

the second question contained in jury note No. 3. The court stated its response would be,

"You may consider all the evidence that was admitted at trial."

The trial court thereafter sent to the jury its typed response to jury note No. 3,

which stated:

"1. Yes. Counts 2 and 4 refer to [e]vents alleged to have occurred at
the Craigie Street address.

"2. You may consider all the [e]vidence that was admitted at trial."

B. Analysis

As noted, Torres claims two of his four convictions—either counts 2 and 4 or

counts 1 and 3—should be reversed because the court lowered the prosecution's burden

of proof and violated his federal Constitutional right to due process by erroneously

responding to the first of the two questions set forth in jury note No. 3 by answering

"Yes" to that question, which asked: "If the jury were to agree that one instance

happened, wouldn't that also be a 'first time' and 'last time?' " Torres asserts the court, in

responding to that question, should have instructed the jury as follows:

48
 "As used in the charges against Mr. Torres, 'first time' and 'last time'
refer to two separate acts. One act cannot be both a 'first time' and a
'last time.' "

Torres also asserts the court's response instructed the jury "that if the jurors agreed

that one leg-touching or one stomach-touching act occurred, the single act would be both

a 'first time' and 'last time.' " He argues that "[t]he instruction is erroneous on its face

because it lower[ed] the prosecution's burden of proof by allowing the jury to return

guilty verdicts on four counts if it unanimously found that only two offenses occurred."

Torres also argues the court violated his Sixth Amendment right to a jury trial by

directing verdicts on two counts.

The Attorney General concedes that two of Torres's four convictions—

specifically, counts 1 and 3—should be reversed because "the trial court's response could

have led the jurors to find [Torres] guilty of four counts even if the jurors only agreed

that he was guilty of two criminal acts."

The parties are correct that two of Torres's four convictions of committing a lewd

and lascivious act upon the victim must be reversed because the court's response to the

first question contained in jury note No. 3, lowered the prosecution's burden of proof and

violated Torres's Sixth Amendment right to a jury trial by directing verdicts on two

counts. We conclude that Torres's convictions of counts 1 and 3 (the "first-time" counts),

rather than counts 2 and 4 (the "last-time" counts), are the two counts that must be

reversed. The first question contained in jury note No. 3 suggests the jury found that

"one instance happened," which would involve both a leg-touching and a stomach-

49
touching.5 During Fortin's second recorded forensic interview of the victim in late

October 2012 (discussed, ante), the victim said the last time Torres touched her was

about two weeks earlier. It is undisputed that Torres and the victim were then living at

the Craigie Street address. As already noted, the court instructed the jury in its response

to jury note No. 3 that "[c]ounts 2 and 4 refer to events alleged to have occurred at the

Craigie Street address," where the record shows the victim, her family, and Torres had

been living since 2010. The information alleged that Torres committed each of the four

charged offense between January 1, 2011 and October 16, 2012. Thus, the molestations

charged in count 2 (the "last-time" leg-touching count) and count 4 (the "last-time"

stomach-touching count) would have occurred while the victim and Torres were living at

the Craigie Street address during the time period alleged in the information, and could not

have happened while they were living at either the Lakeside house or the Home Avenue

apartment. As we shall explain, post, the two remaining counts—count 1 (the "first-time"

leg-touching count) and count 3 (the "first-time" stomach-touching count) must be

reversed for the additional reason that the court, in responding to the second question in

jury note No. 3, erroneously instructed the jury that it could consider the evidence of

Torres's conduct at the Lakeside house or the Home Avenue apartment. That conduct

necessarily happened before the family moved to the Craigie Street address in 2010, and

before the time period charged in the information (between January 1, 2011 and

October 16, 2012).

5 The first question in jury note No. 3 stated in part: "If the jury were to agree that
one instance happened, wouldn't that also be a 'first time' and 'last time'?" (Italics added.)
50
 V. CLAIM OF UNCONSTITUTIONAL INSTRUCTIONAL ERROR (COURT'S
RESPONSE TO SECOND QUESTION IN JUROR NOTE NO. 3)

In a related claim Torres contends all four of his convictions should be reversed

and the case remanded for retrial because the court erroneously instructed the jury in its

response to the second question in jury note No. 3 (discussed, post) that the jurors could

consider "all the evidence," which (the record shows) included evidence of alleged acts

that occurred before the time period charged in the information ("[o]n or about and

between January 1, 2011 and October 16, 2012"). Thus, he asserts, the court violated his

federal Constitutional right to due process under Jackson v. Virginia (1979) 443 U.S. 307

(Jackson) and People v. Ngo (2014) 225 Cal.App.4th 126 (Ngo) "by allowing the jury to

convict [him] based on uncharged conduct."

Torres also contends the court's constitutional error requires reversal under either

(1) Boyde v. California (1990) 494 U.S. 370 (Boyde) [" 'when a case is submitted to the

jury on alternative theories[,] the unconstitutionality of any of the theories requires that

the conviction be set aside"], because the court instructed the jury that its verdicts on all

four counts could be based on either charged conduct, or on uncharged conduct that

occurred before the charged time period (January 1, 2011 to October 16, 2012); or (2)

Neder v. U.S. (1999) 527 U.S. 1, 15 (Neder)—which adopted the harmless error standard

announced in Chapman v. California (1967) 386 U.S. 186 for instructional errors that

6 Under the Chapman harmless error standard, "an otherwise valid conviction
should not be set aside if the reviewing court may confidently say, on the whole record,
that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van
Arsdall (1986) 475 U.S. 673, 681; see Chapman v. California, supra, 386 U.S. 18, 24.)
51
omit an element of an offense—because (Torres asserts) the Attorney General "cannot

prove beyond a reasonable doubt that the jury did not base their verdicts on Counts 1

through 4 on uncharged conduct."

In response, the Attorney General acknowledges the court committed

constitutional error with respect to counts 1 and 3 (the "first-time" counts) and asserts that

Torres's convictions of those counts should be reversed "due to the trial court's flawed

response" to jury note No. 3, but argues Torres's convictions of counts 2 and 4 (the "last-

time" counts) should be affirmed because the court "properly instructed the jury on the

date range of [those] charged offenses" and "there is no possibility that the jury could

have convicted [Torres] on [those two] counts based upon anything that happened"

before the time period charged in the information.

For reasons we shall explain, we reverse Torres's convictions of counts 1 and 3

and affirm his convictions of counts 2 and 4.

A. Background

As discussed, ante, the record shows the victim, her family, and Torres moved to

the Craigie Street address in 2010. During Fortin's second recorded forensic interview of

the victim in late October 2012, the victim said the last time Torres touched her was

about two weeks earlier.

The second question contained in jury note No. 3 stated:

"Defendant is charged with offenses [o]ccurring at Craigie Street,
Jan. 1, 2011 through Oct. 16, 2012. Does that [m]ean we are not to
consider [e]vents that may or may not have [o]ccurred at the
Lakeside and Home Avenue addresses?" (Italics added.)

52
 We already have discussed at length, ante, the court's discussions with both

counsel regarding how the court should respond to the two questions contained in jury

note No. 3. As pertinent here the court—alluding to the same date alleged in each of the

four counts charged in the information—asked counsel, "[T]he allegation is—the theory

of the People's case is that the last time it took place was at the Craigie Street address,

correct?" The prosecutor replied, "[Y]es." Defense counsel agreed with the prosecutor,

and added:

"According to the dates [alleged in the information], the first time is
also at the Craigie Street address."

Later during the discussion, however, defense counsel—while addressing the

jury's second question in jury note No. 3 (whether "[they were] not to consider [e]vents

that may or may not have [o]ccurred at the Lakeside and Home Avenue addresses?") —

indicated the court should tell the jurors they should consider all of the evidence,

including the evidence of events that may have occurred at the Lakeside and Home

Avenue addresses before the family moved to the Craigie Street address in 2010:

"We can't just tell [the jurors] they can't consider . . . the testimony
from Lakeside or the testimony from Home Avenue and just focus
on what happened at Craigie Street. Because they need to consider
everything." (Italics added.)

The prosecutor agreed with Torres's attorney, stating, "I think the reply [to the

second question in jury note No. 3] should be, 'You may consider all of the evidence that

was admitted at trial.' " (Italics added.)

53
 As pertinent here, the court responded to the second question in jury note No. 3 as

follows:

"You may consider all the evidence that was admitted at trial."

As previously discussed, the court also instructed the jury in its response that

"[c]ounts 2 and 4 refer to [e]vents alleged to have occurred [a]t the Craigie Street

address."

B. Analysis

Torres's claim of constitutional error is principally based on Jackson, supra, 443

U.S. 307 and Ngo, supra, 225 Cal.App.4th 126. In Jackson, the United States Supreme

Court explained that "[i]t is axiomatic that a conviction upon a charge not made or upon

a charge not tried constitutes a denial of due process." (Jackson, at p. 314, italics

added.) In Ngo, the Court of Appeal held that a unanimity instruction that expanded the

charged time period during which the defendant allegedly committed a charged lewd act

on a child by force constituted error.7 (Ngo, at pp. 130, 148.)

Here, the Attorney General concedes that Torres's convictions of counts 1 and 3

(the "first-time" counts) should be reversed "due to the court's flawed response" to jury

7 The Ngo court explained that "[t]he second amended information charged
defendant in Count Four with committing a lewd or lascivious act on a child by force 'On
or about and between January 1, 2009, and December 31, 2009.' However, in its
unanimity instruction, the [trial] court instructed the jury that defendant was charged with
committing that act 'sometime during the period of January 1, 2009 and December 31,
2010.' Defendant argue[d] that by erroneously changing '2009' to '2010,' the court
violated his federal rights to due process and trial by jury." (Ngo, supra, 225 Cal.App.4th
at p. 148.) In Ngo the Attorney General conceded the unanimity instruction was
erroneous. (Ibid.)
54
note No. 3 that allowed the jury to consider "all the evidence," including evidence of

Torres's alleged acts at the Lakeside and Home Avenue addresses before 2010 when the

family moved to the Craigie Street address. We agree. The court's instruction violated

Torres's federal constitutional right to due process because it permitted the jury to convict

him of those counts based on uncharged conduct that occurred before the time period

alleged in the information ("[o]n or about and between January 1, 2011 and October 16,

2012"). (Jackson, supra, 443 U.S. 307; Ngo, supra, 225 Cal.App.4th 126.) Accordingly,

we need not decide which standard of prejudice applies and we reverse Torres's

convictions of counts 1 and 3.

We reject Torres's contention that, for the same reason, counts 2 and 4 also must

be reversed. The Attorney General asserts that Torres's convictions of counts 2 and 4

should be affirmed because the court "properly instructed the jury on the date range of

[those] charged offenses" and "there is no possibility that the jury could have convicted

[Torres] on [those two] [c]ounts based upon anything that happened" before the time

period charged in the information. We agree. With respect to counts 2 and 4 the court

gave a unanimity instruction that properly instructed the jurors with the dates alleged in

the information. Specifically, the court gave the following modified instruction under

CALCRIM No. 3501:

"[Torres] is charged with lewd and lascivious act[s] on a child under
14 in Counts 1-4 sometime during the period of January 1, 2011 to
October 16, 2012.

"The People have presented evidence of more than one act to prove
that [Torres] committed these offenses. You must not find [Torres]
guilty unless:

55
 "1. You all agree that the People have proved that [Torres]
committed at least one of these acts and you all agree on which act
he committed for each offense;
"OR

"2. You all agree that the People have proved that [Torres]
committed all of the acts alleged to have occurred during this time
period and have proved that [Torres] committed at least the number
of offenses charged."

The court also specifically instructed that counts 2 and 4 "refer to events alleged to

have occurred at the Craigie Street address." Absent any showing by Torres to the

contrary, we presume the jurors understood and faithfully followed the court's

instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

Furthermore, the evidence shows that the victim told both Officer Kuamoo and

Detective Dickinson on October 16, 2012, that the last time Torres had touched her was

about a week earlier; and that one week later, on October 23, the victim told Fortin during

the second recorded forensic interview that the last time Torres touched her was about

two weeks earlier. This strong evidence shows the "last-time" touchings (counts 2 and 4)

happened at the Craigie Street address during the time period alleged in the accusatory

pleading.

For the foregoing reasons we reverse Torres's convictions of counts 1 and 3 and

affirm his convictions of counts 2 and 4.

VI. RELATED ALTERNATIVE CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL

Torres alternatively contends that, if this court determines that he has forfeited

either of his two preceding claims of error—which are based on the trial court's responses

56
to jury note No. 3—by failing to state a proper objection, all four of his convictions

should be reversed and the case remanded for retrial because "[h]e was denied his Sixth

Amendment right to effective assistance of counsel when defense counsel failed to object

to the trial court's instructions that (1) one act would be both a 'first time' and a 'last time,'

and (2) the jury could consider acts that occurred outside the charged time period." We

do not conclude that Torres forfeited these claims. Accordingly, we need not and do not

reach Torres's claim of ineffective assistance of counsel.

VII. CUMULATIVE ERROR CLAIM

Last, Torres contends all four of his convictions should be reversed and the case

remanded for retrial because the "cumulative effect" of the court's "multiple errors"

deprived him of his federal and state Constitutional due process right to a fair trial.

" '[A] series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error.' " (People

v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is "entitled to a fair trial but

not a perfect one." (Ibid.)

"If none of the claimed errors were individual errors, they cannot constitute

cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9

Cal.4th 953, 994, abrogated on other grounds as recognized by People v. Pearson (2013)

56 Cal.4th 393, 462.)

Here, with the exception of the court's flawed response to jury note No. 3, as to

Torres's convictions of counts 2 and 4—which we are affirming—there were no errors

that might rise by accretion to the level of reversible and prejudicial error.

57
 DISPOSITION

The judgment is reversed in part and affirmed in part as modified. Torres's

convictions of counts 1 and 3 are reversed. His convictions of counts 2 and 4 are

affirmed. Torres's sentence is modified and reduced to an aggregate state prison term of

150 years to life plus 10 years, consisting of two consecutive indeterminate terms of 75

years to life (25 years to life under § 667.61, subd. (a), tripled under the Three Strikes

law) for his convictions of counts 2 and 4, plus a consecutive determinate term of 10

years (five years on each count under § 667, subd. (a)(1)). The matter is remanded with

directions that the superior court prepare an amended abstract of judgment to reflect these

modifications to the judgment and to forward a certified copy of the corrected abstract to

the Department of Corrections and Rehabilitation.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

58