People v. Granados CA4/1

Filed 6/20/22 P. v. Granados 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079887

Plaintiff and Respondent,

v. (Super. Ct. No. MCR060141)

OSCAR GARITA GRANADOS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County,
Joseph A. Soldani, Judge. Affirmed.
Janet J. Gray, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez, and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and
Respondent.
When seven-year-old Alyson Doe told her aunt Paloma M. that her
grandfather Oscar Garita Granados had touched her private parts, Paloma
reported the information to Alyson’s mother, Karina Doe. Karina reached out
to family members, including her older half-sister, Elisa Doe, and a younger
half-sister, Elsie Doe, to ask if they had any experiences of sexual abuse by
Granados. Karina herself recalled being molested by Granados when she was
young, but she had suppressed the memories before she learned about
Alyson. Elisa and Elsie both reported that they, too, had been
inappropriately touched by Granados. Karina reported the incident to police,
who investigated the allegations.
The People filed an information against Granados, alleging he
committed lewd and lascivious acts upon three victims, Elisa, Karina, and

Alyson, each under the age of 14 (Pen. Code,1 § 288, subd. (a)). Granados
was also charged with a special allegation for sexual acts against multiple
victims (§ 667.61, subds. (a) & (d) [Alyson]; subds. (b) & (e) [Elisa]). The
information also alleged three or more acts of substantial sexual conduct and
three and more acts violating section 288 against a fourth victim with whom
he resided, Elsie, who was under the age of 14 at the time (§§ 288.5, subd. (a);
1203.066, subd. (b)).
At trial, the People introduced, among other evidence, transcripts and
videos of Granados’s interrogation interviews, testimony by Paloma about
Alyson reporting the molestation to her, and evidence of prior, uncharged
acts committed against Elisa. The jury acquitted Granados on two counts,
the charges brought relating to Karina and Elsie. But it convicted Granados
on the charges relating to Elisa and Alyson, and the jury found the special
allegation of multiple victims true.

1 Further statutory references are to the Penal Code, unless otherwise
specified.
2
 The court sentenced Granados to 15 years to life for his crimes against
Elisa and 25 years to life for his crimes against Alyson, for an aggregate
prison term of 40 years to life.
On appeal, Granados challenges (1) the charges relating to Elisa,
contending they are barred by the statute of limitations. He also challenges
(2) the imposition of a life sentence as a violation of ex post facto limitations,

(3) the voluntariness of his Miranda2 waiver, and (4) the subsequent
voluntariness of his confession. He contends (5) his attorney’s failure to
request the interrogation be excluded or redacted demonstrates ineffective
assistance of counsel; (6) the use of CALCRIM No. 1191A was improper
because it allowed testimony by one of the victims; (7) the admission of
evidence under Evidence Code section 1108 was unfairly prejudicial because
it was confusing; (8) the admission of evidence of uncharged acts violated his
due process rights; (9) the court erred by failing to sua sponte instruct the
jury on attempted lewd and lascivious conduct; and (10) by admitting the
fresh complaint testimony provided by Paloma. Finally, Granados maintains
that (11) even if these errors are not individually prejudicial, cumulative
error warrants reversal.
We conclude (1) the charges against Elisa were not barred by the
statute of limitations, and (2) the sentence here does not pose any ex post
facto problem. (3) Granados forfeited his challenges to his Miranda waiver
and (4) the voluntariness of his confession, as well as (5) any challenge to the
admission of his interrogation statements. We further conclude (6) the use of
CALCRIM No. 1191A was appropriate, (7) the court did not abuse its
discretion by allowing the evidence of the uncharged crimes, and (8) the
introduction of that evidence did not violate Granados’s constitutional rights.

2 (Miranda v. Arizona (l966) 384 U.S. 436 (Miranda).)
3
Finally, (9) the court had no obligation to offer a sua sponte instruction for
attempt, (10) it did not err by admitting the fresh complaint evidence, and
(11) there is no cumulative error. Accordingly, we will affirm the judgment.
I
BACKGROUND AND PROCEDURAL FACTS
A. Incidents Leading to Investigation
Karina worked an overnight shift on occasion, so she sometimes left her
children at her parents’ house, on Calaveras Street, where she also grew up.
When her mother was working, sometimes Granados watched the children
alone.
Paloma also babysat Alyson and her brother frequently, often
overnight. On August 4, 2018, the children were playing on a bed in
Paloma’s mother’s home when Paloma observed Alyson’s brother bite Alyson
below the waistline. Paloma told the children that it was not okay for
Alyson’s brother to bite her because that harms Alyson, and she told the
children it was also not okay for others to touch their private areas, even
family members. A few minutes later, Alyson told Paloma that her
grandfather, Granados, touched her in the areas that Paloma just said were
private. Alyson told Paloma her grandfather touched her private parts over
and under her clothes. Paloma reported what Alyson said to Karina.
B. The Pretext Call
After she spoke to Paloma, Karina went to the police, who investigated.
Officer David Ochoa had Karina conduct a pretext call with Granados on
August 14, 2018. During the call, Karina asked Granados if it were true that
he had touched Alyson in places where Alyson should not be touched.
Granados denied touching Alyson inappropriately.

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 However, Granados revealed that Alyson had complained about an
itching or pricking on her skin and bottom, so he had looked at the area
below her waist on her backside. He put some cream on the irritation. He
also told Karina that he had hugged and kissed Alyson, in the way an
affectionate grandparent would, because he thought Alyson was lacking
affection from her father. And he explained that sometimes Alyson asked
him to lay down with her while she was watching TV, but he was usually
busy with other activities. He said he never touched Alyson inappropriately.
Paloma also told Karina that something had happened to Karina’s
younger sister Elsie. Karina called Elsie to ask whether anything had
happened to her with Granados. When Karina mentioned to Granados that
Elsie told her about things Granados had done when she was little, Granados
denied ever doing anything to Elsie. But when Karina mentioned her older,
half-sister Elisa during the call, Granados admitted something had
happened, but he said he did not “do things as—as a man.” He had hugged
Elisa, and something had happened, but he said it was a long time ago.
C. The Interrogation
The next day, police visited Granados at his home and asked him to
come in for questioning. When police arrived at Granados’s home, Granados
was outside, and police explained they wanted to talk to him, but not in front
of his neighbors. Granados told an officer he could imagine the topic because
his daughter had called the previous day. Officer Ochoa accompanied
Granados as he collected his keys, shoes, and wallet, and they chatted. They
talked about Costa Rica after Granados volunteered his family was from
there, and Officer Ochoa asked about Granados’s travels on his motorcycle
after the pair passed by the vehicle.

5
 Once at the police station, Officer Ochoa read Granados his Miranda
rights, which Granados waived. Officer Ochoa explained he knew something
had happened between Granados and his granddaughter Alyson, and he was
not sure whom to believe. Officer Ochoa told Granados he knew Granados
was a good person, and he wanted to get Granados’s story so he could hear
another point of view.
Granados explained that sometimes he and/or his wife watched his
granddaughter Alyson, and while Alyson watched television with her brother
in a bedroom, sometimes she asked Granados to lie down on the bed with
them, and so he did.
Once Alyson asked Granados for a cream or oil because something was
itching her on her hip, near her buttocks. Granados pulled down Alyson’s
pants to make sure there was not a welt, and he applied the cream.
Granados told Officer Ochoa that another time, while hugging Alyson
with both arms, she grabbed his hand and tried to lower it toward her vagina.
He told her not to do that because it was dangerous, and he would be put in
jail. He did not tell Alyson’s mother about the incident because he did not
want her to scold Alyson.
Granados denied ever touching his daughter Elsie.
Granados told Officer Ochoa “something did happen” with his
stepdaughter Elisa when she was around 14 or 15 years old, but he did not
fondle Elisa. Though he “lost his head,” they did not have “relations,” which
he defined as vaginal penetration with his penis. Initially, he told Officer
Ochoa he would hug Elisa and get a bit close, and that she liked it, but he did
not touch her inappropriately; he could not remember if he had touched her
breasts, but he did not touch her vagina or her buttocks.

6
 Granados eventually explained that he kissed Elisa around the neck
and on the cheek. He felt horny, and he hugged her tightly and developed an
erection, which he believed Elisa felt. Granados also admitted he put his
hands under Elisa’s clothes, and he commented about females, “[I]f she
doesn’t say anything, well, one wants to slide the hands down or touch
something.” He told Officer Ochoa that when he put his hand in Elisa’s
pants, she pulled his hand back up when it reached her buttocks because she
did not like having her buttocks touched. He also told Officer Ochoa that he
had made a mistake and regretted it.
He said he never slid his hands down the front of her pants under her
clothes. When Officer Ochoa asked if Granados touched Elisa’s vagina,
Granados said he did not remember doing that. Granados repeatedly denied
any penetration with Elisa.
Officer Ochoa told Granados that the people who reported the incidents
to the police said there had been penetration with Elisa. He explained that
he wanted to know the truth, and “if there is a way I can help you . . . that’s
why I need to know.”
Over the course of several interviews throughout the day, Officer Ochoa
repeatedly implored Granados to tell the truth. He told Granados that he
had worked as an officer for a long time, and he could tell if a person was
lying or not telling the whole truth. He explained that he works with kids in
school, and when a seven year old is descriptive, it makes him think she is
telling the truth. So, Officer Ochoa told Granados that he knew the truth,
and if Granados were untruthful, Officer Ochoa could not help him. He said
he thought Granados was not telling him everything, and that if Granados
did not tell the truth completely, he could not help Granados, and Granados
would end up in jail.

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 Officer Ochoa repeatedly mentioned wanting to help Granados. He
clarified that he did not want Granados to create stories to make him happy,
but if there was a way he could help Granados, he would, that he would listen
to the whole story, and that he wanted Granados to reveal the truth to “allow
us to end this here . . . and let’s everyone go home.”
Officer Ochoa told Granados he also wanted to help the victims: “I
want to help them. I don’t want to be unfair with you, I don’t want to be
unfair with them.” And he offered to help Granados write an apology letter
to Elisa.
Eventually, Granados asked Officer Ochoa, “What does help consist of?”
Officer Ochoa responded, “The help consists of knowing the truth, because
let’s say, I let you go, then something comes up, I can’t help you anymore,
now this time—now you’re lying to me and now you’re getting in more
trouble, do you understand me?” Granados commented he thought maybe
the officer was going to send him to a psychologist because this was affecting
him. Officer Ochoa clarified that if Granados were dishonest, the victims
might be angry with the police because they know the truth of what
happened.
Officer Ochoa also told Granados that sometimes suspects do not
remember details, and in his experience, when a person says they should not
go to jail for something they do not remember, it is not an excuse for avoiding
jail.
Video of the interviews were played at trial for the jury, and transcripts
were admitted into evidence.
D. The Forensic Interview
Karina took Alyson for a forensic interview, which was conducted by
Angelica Limon. Limon told Alyson it was her job to talk to kids to make

8
sure they are safe. Alyson said no one had ever bothered her or done
anything she did not like.
Limon reviewed with Alyson good touches, bad touches, and secret
touches, and she used a diagram to review the body parts. Using the
diagram, Limon asked Alyson if anyone touched her buttocks, and Alyson

indicated Granados had “a long time ago” when she was seven years old.3
Limon pointed to other parts of the body on the diagram and asked if
Granados had used any parts of his body to touch the various parts. Alyson
said Granados kept touching her where she did not want him to touch her.
She said he lifted up her shirt to lick her under it, and he licked the part girls
use to pee, on the inside and the outside. He also touched her butt with his
hand over and under her clothes. He would tell her to take off her
underwear. He told her not to tell anybody.
Limon asked Alyson if anyone told her what to say in their interview,
and Alyson said no. Alyson said everything she talked about was the truth.
E. The Charges
The People filed a criminal complaint against Granados on August 16,
2018 and followed it on November 20, 2018 with an information that
contained charges relating to four victims. On February 11, 2019, the People
filed a first amended information, which Granados did not oppose. That
information, the operative one in this matter, charged Granados with
committing a lewd and lascivious act upon Elisa, who was under age 14,
between December 19, 1994 and December 18, 1995 (§ 288, subd. (a);
count 1); violating section 288.5, subdivision (a) by engaging in three and
more acts of “substantial sexual conduct” (§ 1203.066, subd. (b)) and three
and more acts in violation of section 288 with Elsie, a child under age 14

3 Alyson was still seven years old at the time of the interview.
9
(count 2); committing a lewd and lascivious act upon Karina, who was under
age 14 (§ 288, subd. (a); count 3); and committing lewd and lascivious acts
upon Alyson, a child under age 14 (§ 288, subd. (a); count 4). The People also
alleged multiple victims (§ 667.61, subds. (a) & (d) [Alyson]; subds. (b) & (e)
[Elisa]) as to counts 1, 3, and 4. As to count 2, the People alleged the victim
was under 18 at the time of the offense and under 40 at the time of the
information (§ 801.1, subd. (a)).
F. Trial Testimony
1. Angelica Limon
At trial, Limon testified as an expert witness about her August 2018
forensic interview of Alyson. She discussed the diagram she used with
Alyson during the interview and testified that Alyson told her Granados used
his hand to touch her chest. The People introduced a transcript of the
interview and played the video of the interview for the jury.
2. Elisa Doe
Elisa testified that she lived with her mother and Granados when she
was 13 at the house on Calaveras Street. She lived with her mom, Granados,
and their children, Karina and two younger boys. When she was 13, she and
Karina shared a room with bunk beds. Elisa slept on the top bunk. There
were many times when she would wake up at night to Granados putting his
hands down her underpants or touching her breasts. She said that no
specific incident from when she was 13 stood out because it happened
frequently, primarily at night or when her mother was not around.
Elisa said she remembered it happening first when she was around
10 or 11 years old. She remembered the age it started because she came to
the United States when she was nine years old and lived in Fresno for about
a year and a half before moving to Calaveras Street, and the molestation

10
began right before that move, when she was around 10 and a half or 11 years
old. Defense counsel did not object to questions about Elisa’s age.
Elisa did not report the abuse because she was ashamed, and Granados
had threatened her.
3. Elsie Doe
When Karina called Elsie and asked if something had ever happened
because something was happening with Alyson, Elsie confirmed something
had happened. Elsie had never said anything when she was younger because
she was afraid and did not know whom to tell.
Elsie testified that when she was a few months old, her parents
separated, and she would visit her father, Granados, overnight some
weekends at his home on Calaveras Street. Sometimes she would share a
bed with Granados and her stepmother, and she remembered being touched
every now and then at nighttime. Granados would slip his hand under her
underwear and cup her vagina. She estimated the touching began around
age six to eight. It happened frequently enough that she was not surprised
by it. She also recalled Granados grabbing her butt in public when she was
around age 13, and Granados positioning her leg between his, up against his
groin, while they were in bed.
4. Karina Doe
When Karina was around 11 or 12 years old, she felt pain in her chest
area once and went looking for her mom. When she found Granados instead,
she told him her breasts hurt, and he told her to sit down and let him see. He
grabbed her breasts, then let them go. Karina asked Granados what he was
doing, but he did not respond. It felt wrong to her, and she walked out,
crying. Karina never mentioned the incident to her mother. Sometimes,
when Karina was sitting next to Granados in the passenger seat of the car,

11
he put his hand on her thigh area and told her not to let anybody put a hand
there and touch her wrong. Karina had suppressed these memories, so she
did not think anything was happening to her children at her parents’ home.
Although Karina shared a bedroom with Elisa and slept on the bottom
bunk, she never awoke to anything unusual going on in the room.
5. Alyson Doe
Alyson testified that she used to stay with her grandparents at their
home on Calaveras Street, and she talked to her mom and Paloma about him.
When shown the diagram of a body, Alyson testified that when she was
in second grade, Granados touched her on the middle portion of the drawing.
She also said Granados touched her private area, both the front and back
side, a long, long time ago, when she was in second grade. She said he would
touch her private area at nighttime, in the house on Calaveras Street, with
his hand.
6. Oscar Granados
Granados testified on his own behalf. He denied molesting Elisa or
Alyson. When asked about touching Elisa, Granados said he tried to lower
his hands to her buttocks, but she did not permit it. He also testified it
happened just one time, when Elisa was 14.
Granados acknowledged he had an erection when he hugged Elisa, but
said that reaction only occurred once. And he testified that Elisa was
affectionate with him because Elisa knew there were marital problems. He
explained he did not go too far with Elisa because he did not take off her
clothes or touch her buttocks, but he did need to “pull [himself] back” because
of his erection. He denied touching Elisa’s vagina or buttocks.

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 G. Verdict & Sentencing
On March 7, 2019, a jury acquitted Granados of counts 2 and 3,
relating to Elsie and Karina. It convicted Granados on counts 1 and 4, for
committing lewd and lascivious acts upon and with a child under age 14, in
violation of section 288, subdivision (a). The jury found true that Granados
had committed the offense against more than one victim (§ 667.61).
The court denied probation and sentenced Granados on April 5, 2019 to
an aggregate term of 40 years to life, consisting of 15 years to life on count 1
and 25 years to life on count 4.
Granados timely appealed.
II
DISCUSSION
A. Statute of Limitations
“ ‘[W]hen the charging document indicates on its face that an action is
time-barred, a person convicted of a charged offense may raise the statute of
limitations at any time,’ including on appeal.” (People v. Ortega (2013) 218
Cal.App.4th 1418, 1427 (Ortega), quoting People v. Williams (1999) 21
Cal.4th 335, 341.) The limitations period ends when an information is filed.
(§§ 800, 803, 804.) A court must dismiss charges filed after a statute has run
due to an irrebuttable presumption that a defendant’s right to a fair trial is
prejudiced unless the statute of limitations has been tolled. (See United
States v. Marion (1971) 404 U.S. 307, 322; People v. Angel (1999)
70 Cal.App.4th 1141, 1144, 1150.) We review the issue de novo. (People v.
Brown (2018) 23 Cal.App.5th 765, 772; People v. Hollie (2010) 180
Cal.App.4th 1262, 1270.)

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 A crime’s maximum possible punishment, without consideration of
enhancements, determines the offense’s statute of limitations. (§ 805,
subd. (a); People v. Lopez (1997) 52 Cal.App.4th 233, 238, fn. 1.) Granados
contends the operative sentencing scheme here is section 800, which limits
the term of punishment for violating section 288, subdivision (a) to eight
years (see Ortega, supra, 218 Cal.App.4th at p. 1428) and therefore sets the
statute of limitations at six years (§ 800). The Attorney General concedes
that if a six-year statute of limitations were applicable, the charges in count 1
would be barred. But the Attorney General contends the alternative
sentencing scheme found in section 667.61, subdivision (e), the One Strike
law, controls count 1.
The One Strike law sets the prison term for violating section 288,
subdivision (a) where there are multiple victims at 15 years to life. (§ 667.61,
subd. (b).) Because an offense punishable by life in prison “may be
commenced at any time” (§ 799), the application of section 667.61 would
extend the statute of limitations in count 1. To resolve this dispute, we are
tasked with determining what effect, if any, the One Strike law has on
Granados’s case.
Granados asks us to apply the reasoning offered in People v. Turner
(2005) 134 Cal.App.4th 1591 (Turner) to conclude the One Strike law does not
extend the statute of limitations here. In Turner, the defendant was
convicted of multiple counts, including forcible oral copulation, forcible rape,
aggravated assault, false imprisonment, kidnapping, residential robbery, and
torture, against four different victims. (Id. at p. 1593.) Among other
findings, the court found true allegations of seven prior convictions under the
“Three Strikes” law (§ 1170.12), several prior serious felony convictions
(§ 667, subd. (a)(1)), and a prior conviction under the “One Strike” law

14
(§ 667.61.) (Ibid.) The appellate court considered the effect of the Three
Strikes law (§ 1170.12) on the statute of limitations for the residential
robbery count. (Turner, at p. 1595.) The defendant argued that the statute of
limitations could not be based on the sentencing outlined in the Three Strikes
law because that law was based on his status as a recidivist. (Turner, at
p. 1596.) He contended that the use of the word “ ‘offense’ ” in sections 799
and 805 meant the statute of limitations was extended only where the offense
itself could result in a life sentence, not where facts other than the
commission of the offense could do so. (Turner, at p. 1596.)
Division One of the First Appellate District agreed, holding that the
allegations of serious prior felony convictions did not constitute “an ‘offense’ ”
for which the defendant was prosecuted. (Turner, supra, 134 Cal.App.4th at
p. 1597.) The appellate court reasoned that the prior convictions referred
only to facts relevant to a particular offender, which simply established a
defendant’s status as a recidivist. (Id. at pp. 1596-1599.) And because the
alternative punishment was imposed based upon the fact of recidivism, the
sentence did not regard the seriousness of the current felony offense and
therefore did not warrant application of section 799 to extend the statute of
limitations. (Turner, at p. 1600.)
Subsequent authority takes a different view. In People v. Perez (2010)
182 Cal.App.4th 231 (Perez), the Sixth Appellate District considered whether
the statute of limitations could be extended indefinitely pursuant to section
799 in the context of the One Strike law (§ 667.61). (Perez, at pp. 239-240.)
There, a jury convicted the defendant of multiple counts of lewd and
lascivious conduct under section 288 against multiple victims, with
allegations under the One Strike law as to each count. (Perez, at p. 234.)
Perez considered two Supreme Court cases that had been decided after

15
Turner, People v. Jones (2009) 47 Cal.4th 566 (Jones) and People v. Brookfield
(2009) 47 Cal.4th 583 (Brookfield). Jones and Brookfield each regarded the
interplay between section 186.22, targeting participants in criminal street
gangs, and section 12022.53’s penalty provisions. (Jones, at pp. 572-573;
Brookfield, at pp. 591-592.)
In Jones, the Supreme Court asked if the life imprisonment
punishment prescribed when an offense is found to be committed for the
benefit of a criminal street gang made the offense punishable by death or life
imprisonment, thus triggering a 20-year enhancement for use of a firearm
and concluded it did. (Jones, supra, 47 Cal.4th at p. 569.) It reasoned that
the sentencing provision there “ ‘set[ ] forth an alternate penalty for the
underlying felony itself, when the jury ha[d] determined that the defendant
ha[d] satisfied the conditions specified in the statute.’ ” (Id. at p. 578.) It
contrasted that from an enhancement that provided for a term of prison in
addition to the sentence for the underlying offense. (Ibid; Brookfield, supra,
47 Cal.4th at p. 591.)
In Brookfield, the high court likewise concluded that when a crime is
committed to benefit a criminal street gang, the life sentence does not
“constitute a sentence enhancement, because it is not imposed in addition to
the sentence for the underlying crime . . . ; rather, it is an alternate penalty
for that offense.” (Brookfield, supra, 47 Cal.4th at p. 591.)
The Perez court considered the reasoning of Turner but concluded
“Section 667.61 is an alternate penalty scheme that, when charged, defines
the length of imprisonment for the substantive offense of violating section
288, subdivision (b)(1). Thus, the unlimited timeframe for prosecution set out
in section 799 for an offense ‘punishable by death or by imprisonment in the

16
state prison for life . . . ’ ” applies, given the life sentence required by the One
Strike law because of the true findings on the multiple victim allegations.
(Perez, supra, 182 Cal.App.4th at pp. 239-240.)
We find Perez persuasive and agree with the Sixth Appellate District
that Turner “should be narrowly construed to apply only to the antirecidivist
Three Strikes law, and not the One Strike law, which punishes, as relevant
here, not recidivism but the commission of sexual offenses against more than
one victim.” (Perez, supra, 182 Cal.App.4th at p. 241; accord, Anthony v.
Superior Court (2010) 188 Cal.App.4th 700, 717 [Turner must be limited to
its facts because it “was entirely focused on the nexus between the statute of
limitations scheme and the Three Strikes law”].)
We also note that Turner is distinguishable from Perez because Turner
applied to an offender based on past criminal conduct, not on the particular
circumstances attendant to the present offenses. (See Turner, supra, 134
Cal.App.4th at p. 1597.) Although the defendant there was convicted of
crimes against multiple victims, the statute of limitations challenge regarded
residential robbery to which the Three Strikes law applied, not lewd and
lascivious acts to which the One Strike law applies. Here, Granados was
convicted of victimizing multiple children. Thus, it is Granados’s acts that
expose him to the alternate penalty under the One Strike law.
Because the circumstances of the crimes alleged in counts 1 and 4
“were serious enough to earn [Granados] a life sentence [under the One
Strike law,] they were serious enough to warrant prosecution at any time
during his natural life.” (Perez, supra, 182 Cal.App.4th at pp. 241-242.)
Accordingly, count 1 was timely prosecuted.

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 B. Ex Post Facto
Granados contends the applicability of the One Strike law (§ 667.61) is
tied to whether or not he qualified for probation under former subdivision (c)
of section 1203.066 and further contends he was presumptively eligible for
probation in 1994. If he were eligible for probation in 1994 and 1995 when he
committed the crimes against Elisa, he argues, the One Strike law would be
inapplicable. Further, he contends it violates Apprendi v. New Jersey (2000)
530 U.S. 466, 490 to wait until 2019 to determine at sentencing whether the
One Strike law applies because it increases the punishment possible without
submitting the finding to a jury.
The maximum penalty for violating section 288, subdivision (a)
depends on whether Granados “committed his offenses before or after the
effective date of section 667.61.” (People v. Hiscox (2006) 136 Cal.App.4th
253, 260.) Section 667.61, the One Strike law, took effect November 30, 1994
(Hiscox, at p. 257), and it applies to violations of section 288 that occurred in
late 1994 and 1995 (see Hiscox, at p. 257; People v. Valenti (2016) 243
Cal.App.4th 1140, 1173-1174). Granados was charged for acts that occurred
after the effective date of section 667.61. In 1994, section 667.61,
subdivision (b)(7) applied to “[a] violation of subdivision (a) of section 288,
unless the defendant qualifie[d] for probation under subdivision (c) of
Section 1203.066.” (Stats. 1994, ch. 447, § 1.)
At that time, section 1203.066 prohibited probation for 10 categories of
sexual offenses, including violations of section 288, subdivision (a).
(Amended Stats. 1993, ch. 587, § 1 [§§ 1203.066, subd. (a)(7) & (c)(1)-(4)]; see
People v. Jeffers (1987) 43 Cal.3d 984, 987 (Jeffers).) Section 1203.066,
subdivisions (a)(7) and (c) provided that “probation shall not be granted to . . .
[¶] . . . [¶] [a] person who is convicted of committing a violation of Section 288

18
or 288.5 against more than one victim” except “when the court makes all of
the following findings: [¶] (1) The defendant is the victim’s natural parent,
adoptive parent, stepparent, relative, or is a member of the victim’s
household who has lived in the household[; ¶] (2) A grant of probation to the
defendant is in the best interest of the child[; ¶] (3) Rehabilitation of the
defendant is feasible in a recognized treatment program designed to deal
with child molestation, . . . [; ¶ and] (4) There is no threat of physical harm
to the child victim if probation is granted.” (Amended Stats. 1993, ch. 587,
§ 1 [§§ 1203.066, subd. (a)(7) & (c)(1)-(4)].) The statute also stated that the
court was not precluded from sentencing the defendant to jail or prison upon
making the required findings; it simply retained discretion to impose
probation. (Id., subd. (c)(4); see Jeffers, at p. 987 [explaining probation could
be an option for violating section 288, subd. (a) if imprisonment were not in
child’s best interest].)
A child victim’s best interest is determined at the sentencing hearing,
based on the child’s best interest at the time of sentencing, not at the time of
the criminal acts. (Jeffers, supra, 43 Cal.3d at pp. 992, 999 [explaining
legislative concerns regarding a child’s best interest regard whether
conditions exist at time of sentencing].) But when a victim is no longer a
child at the time of sentencing, a court cannot determine what is in the “best
interest of the child” because there is no child. (People v. Wills (2008) 160
Cal.App.4th 728, 737-738 (Wills).) Thus, applying the version of section
667.61 in effect in 1994 and 1995, the time of the relevant crimes, the court
properly considered whether Granados could be eligible for probation at the
time of sentencing. Because Elisa was not a child at the time of sentencing
and the court has “no authority, and thus no legal discretion, to grant

19
probation . . . in a case in which the molestation victim is no longer a child at
the time of sentencing” (see Wills, at p. 740), the court’s imposition of
indeterminate life sentences was not improper here.
Moreover, the delay between the time of the criminal acts and
sentencing in this case did not increase the penalty for Granados. Even if
Granados were eligible for probation under the terms detailed in
section 667.61 in effect at the time of the crime, that would not have ensured
a probation sentence rather than the prison term he received because
probation is an act of clemency that requires a reduction to the sentence.
(See People v. Benitez (2005) 127 Cal.App.4th 1274, 1278.) The statute
expressly stated the court had discretion regarding probation; the court was
not precluded from sentencing the defendant to jail or prison upon making
the required findings (amended Stats. 1993, ch. 587, § 1 [§ 1203.066,
subd. (c)(4)]). Because a court’s decision not to grant probation, particularly
where the law requires consideration of circumstances at the time of
sentencing, does not increase the penalty available or criminalize conduct
that was previously not criminal, the punishment here does not run afoul of
ex post facto prohibitions.
C. Challenges to Granados’s Statements to Police
1. Additional Facts
On February 8, 2019, the People filed a motion in limine to admit
Granados’s Spanish statements to Officer Ochoa, as translated. The motion
contended that the officer was qualified to speak and interpret Spanish and
that the officer had Mirandized Granados. At the hearing on the motions in
limine, defense counsel agreed there was foundation for Officer Ochoa to use
and interpret Spanish. When the court asked if there were any objections to
the admission of the interview statements, defense counsel addressed the

20
officer’s abilities, stating the defense would stipulate to Officer Ochoa’s
ability to speak Spanish. The court then announced it would dispense with
the Evidence Code section 402 hearing and authorize the use of the
defendant’s statements. Defense counsel did not object to the admission of

the statements.4 Nor did defense counsel object to their admission at trial.
2. Voluntary waiver of Miranda
The prosecution bears the burden of proving by a preponderance of the
evidence that a defendant has waived Miranda rights. (People v. Linton
(2013) 56 Cal.4th 1146, 1171 (Linton); People v. Williams (2010) 49 Cal.4th
405, 425 (Williams), quoting People v. Dykes (2009) 46 Cal.4th 731, 751.)
Whether a Miranda waiver is voluntary, knowing, and intelligent depends on
the totality of the circumstances surrounding the interrogation. (Williams,
at p. 425; People v. Cruz (2008) 44 Cal.4th 636, 668.) Thus, an evaluation of
the voluntariness of the waiver “requires an evaluation of both the
defendant’s state of mind and circumstances surrounding the questioning.”
(People v. Leon (2020) 8 Cal.5th 831, 843.) We independently review the trial
court’s legal determination, and we rely on its findings on disputed facts as
long as they are supported by substantial evidence. (Williams, supra, 49
Cal.4th at p. 425.)
Granados contends on appeal that Officer Ochoa “soften[ed him] up”
before reading the Miranda warning, making the waiver involuntary. He
further contends he may raise this issue for the first time on appeal because
it is a legal question that relies on undisputed facts.
As the Supreme Court has explained, “The determination [of] whether
a waiver is voluntary is one entrusted to the trial judge, based on the totality

4 There is no indication in the record before us that Granados filed any
written opposition to the motion in limine.
21
of the facts and circumstances, including the background, experience and
conduct of the accused.” (People v. Michaels (2002) 28 Cal.4th 486, 512
(Michaels).) Here, because the parties did not develop the issues below, we
lack information about how long the police spent at Granados’s home and
how much time elapsed between that conversation and the conversation at
the police station where Granados was Mirandized. And Granados’s failure
to object to the use of his statements means the People did not have the
opportunity to elicit information about Granados’s background, experience,
and conduct, or to respond to any attacks on the waiver. (Id. at p. 512.)
Although Granados points to some undisputed facts, like his immigrant
status and his limited criminal history, he likewise asks us to interpret the
significance of these details. We decline to do so here, where the record is
undeveloped on this point, and where Granados failed to object to the use of
this information, thereby forfeiting the issue. (People v. Ray (1996) 13
Cal.4th 313, 339 (Ray); Michaels, at pp. 511-512.)
3. Voluntariness of Confession
Granados also argues his confession to Officer Ochoa, given after he
was Mirandized, was the product of psychological pressure, making it
involuntary. Granados explains that a confession is involuntary when
elicited by an express or implied promise of benefit of leniency (Ray, supra,
13 Cal.4th at pp. 339-340) and notes Officer Ochoa repeatedly told him the
officer wanted to help but needed Granados to tell the truth in order to do so.
Granados also highlights the Reid Technique, which incorporates the use of
false evidence to confront a defendant, and he alleges the police used this
method, also making his statements involuntary.
An involuntary confession is predicated upon coercive police activity
and is not admissible. (People v. Maury (2003) 30 Cal.4th 342, 404; Linton,

22
supra, 56 Cal.4th at p. 1176.) The test for voluntariness is “whether the
defendant’s ‘will was overborne at the time he confessed.’ ” (Maury, at p. 404,
quoting Lynumn v. Illinois (1963) 372 U.S. 528, 534.) Such a determination
is based on the totality of the circumstances, including “ ‘ “the crucial element
of police coercion [citation]; the length of the interrogation [citation]; its
location [citation]; its continuity” as well as “the defendant’s maturity
[citation]; education [citation]; physical condition [citation]; and mental
health.” ’ ” (Williams, supra, 49 Cal.4th at p. 436; Michaels, supra, 28 Cal.4th
at pp. 511-512.) But “no single factor is dispositive.” (Williams, at p. 436.)
Granados failed to challenge the voluntariness of his statements and
forfeited the challenge by not making a due process objection to the
statements’ admission in the trial court. (See People v. Orozco (2019) 32
Cal.App.5th 802, 818-819; see also People v. Quiroz (2013) 215
Cal.App.4th 65, 80.)
Granados maintains that when “the defendant is given to understand
that he might reasonably expect benefits in the nature of more lenient
treatment at the hands of the state then the police conduct renders the
statement involuntary and inadmissible.” (See People v. Hall (1967) 66
Cal.2d 536, 549.) But we lack information regarding whether Officer Ochoa’s
interaction with Granados would have been viewed as offering an implied
benefit. Although Officer Ochoa commented that he wanted to “end this
here” and let “everyone go home,” he also told Granados that not
remembering details of the events would not be an excuse for avoiding jail.
And while Officer Ochoa told Granados he wanted to help Granados, he also
said, “If there is a way I can . . . help you, I’ll help you,” and he offered to
help Granados write an apology letter to Elisa. (Boldface added.) Further,
when Granados asked Officer Ochoa what “help” would consist of,

23
commenting he thought it might mean sending him to a psychologist, Officer
Ochoa responded that “help consists of knowing the truth” because lying
would mean “getting in more trouble.” From these comments and
interactions, we simply cannot tell whether Granados felt coerced, as he
suggests on appeal.
Further, Granados’s comparison to People v. Saldana (2018) 19
Cal.App.5th 432 is not helpful. In Saldana, after describing interrogation
techniques similar to the ones Granados complains of—the interrogator’s
belief the suspect is guilty, and offering the suspect a “moral justification and
face-saving excuse[ ]” for his actions—the court noted that “[i]t is appropriate
for police to use these interrogation techniques.” (Id. at pp. 437-438.) The
court found the interview in Saldana problematic because the defendant was
questioned at the police station in what was tantamount to a custodial
interrogation without first being advised of his Miranda rights. (Id. at
p. 441.) But here, Granados was only questioned after he waived his
Miranda rights. On this record, we cannot find Granados’s confession was
coerced or involuntary.
D. Ineffective Assistance of Counsel
Granados contends his attorney offered ineffective assistance of counsel
by not seeking to exclude outright Granados’s interrogation statements, not
challenging the voluntariness of the confession, and because counsel did not
seek to redact statements in the interrogation interviews during which
Officer Ochoa repeatedly stated he believed the victims and accused
Granados of penetration with Elisa.
To demonstrate ineffective assistance of counsel, Granados must
demonstrate his trial attorney’s performance (1) fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the

24
deficient performance prejudiced him. (Strickland v. Washington (1984) 466
U.S. 668, 687-688.) We evaluate the attorney’s conduct with deference and
we “indulge a strong presumption that counsel’s acts were within the wide
range of reasonable professional assistance.” (People v. Dennis (1998) 17
Cal.4th 468, 541.) “Counsel’s failure to make a futile or unmeritorious
objection is not deficient performance.” (People v. Beasley (2003) 105
Cal.App.4th 1078, 1092, citing People v. Price (1991) 1 Cal.4th 324, 387.)
Further, “ ‘ “[i]f the record on appeal sheds no light on why counsel
acted or failed to act in the manner challenged[,] . . . unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,” the claim on appeal must be rejected.’ ”
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello);
People v. Cash (2002) 28 Cal.4th 703, 734 (Cash) [“ ‘ “ ‘record must
affirmatively disclose the lack of rational tactical purpose for challenged act
or omission.’ [Citation.]” ’ [Citation.]”].) “A claim of ineffective assistance in
such a case is more appropriately decided in a habeas corpus proceeding.”
(Mendoza Tello, at pp. 266-267.)
For each of the alleged errors, Granados maintains that his attorney
should have sought exclusion of the interrogation statements or redaction of
some portion of them. But there were tactical reasons to admit the entirety
of the interviews. For example, Granados told Officer Ochoa that Elisa was
at least 14 years old, negating an element of count 1 that required the victim
to be under age 14. Granados’s attorney urged acquittal on count 1 for that
reason.
Similarly, Granados’s counsel may not have objected to the admission
of the entire interrogation interview sequence because it highlighted how
frequently Officer Ochoa was lying to Granados and how steadfast Granados

25
was in his denial of some of the accusations. Granados’s consistent denials
may have established credibility in his favor, where the repeated lies may
have reduced the esteem of the officer in the eyes of the jury.
Moreover, when Officer Ochoa told Granados that his story did not
match the specific details provided by victims, Granados seemed puzzled,
commenting he would like more information from the victims directly
because he did not hold the same memories. His attorney may have opted to
include these details because it showed Granados did not react defensively,
and that may have tended to show he was more credible when he denied the
allegations in counts 2 and 3, for which he was acquitted. His denials
regarding the allegations of penetration in the face of repeated accusations
likewise may have elevated his credibility and impacted the jury’s decisions
on other counts.
We cannot say the failure to object to the admission of some or all of the
interrogation evinces ineffective assistance of counsel. Absent some
declaration or other information for defense counsel’s decision not to
challenge the admission of the full interview, we must reject this argument
on appeal. (Mendoza Tello, supra, 15 Cal.4th at p. 266, Cash, supra, 28
Cal.4th at p. 734.)
E. Evidence of Uncharged Crimes
1. Additional Facts
The People proposed a line of questions to establish the events in the
charged count occurred when Elisa was 13 years old, and that Granados
would touch her under her underwear as she slept or prepared to sleep. The
People also sought to ask additional questions regarding uncharged conduct
that would help establish Elisa’s age when Granados’s behavior began. The
prosecutor explained that she would limit the testimony to focus on when the

26
touching started, not straying into the later teen years or the length of the
abuse, because it was consistent with the age other victims would testify to
regarding the ages at which Granados began molesting them.
Defense counsel argued the evidence of uncharged conduct would be
highly prejudicial and confusing. When pressed about what made the
evidence unduly prejudicial, defense counsel argued “the sheer nature” of the
testimony would outweigh the probative value and preclude an opportunity to
defend the facts of the case. He argued the allegations were vague and
lacked material that would aid the jury in evaluating the facts of the case,
causing confusion and prejudice.
The court concluded that the evidence proposed tended to show
propensity, and it would allow the testimony with the limitations outlined by
the People.

The court instructed the jury with CALCRIM No. 1191A 5:

“The People presented evidence that the defendant
committed the crime of Lewd and Lascivious Act on A Child
Under the Age of 14 years that was not charged in this
case. . . .

“You may consider this evidence only if the People have
proved by a preponderance of the evidence that the
defendant in fact committed the uncharged offense. Proof
by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true.

“If the People have not met this burden of proof, you must
disregard this evidence entirely.

5 CALCRIM No. 1191A contains the same language as former CALCRIM
No. 1191. (People v. Gonzales (2017) 16 Cal.App.5th 494, 496, fn. 1
(Gonzales).)
27
 “If you decide that the defendant committed the uncharged
offense, you may, but are not required to, conclude from
that evidence that the defendant was disposed or inclined
to commit sexual offenses, and based on that decision, also
conclude that the defendant was likely to commit and did
commit, as charged here. If you conclude that the
defendant committed the uncharged offense, that
conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that
the defendant is guilty of the charge. The People must still
prove the charge beyond a reasonable doubt.”

The People referenced the jury instruction during closing arguments,
explaining that CALCRIM No. 1191A addresses uncharged conduct, and in
this case it looked at whether Elisa’s testimony of the timing of the
molestation for which Granados was not charged was credible, and if so,
whether it contributed to demonstrating a pattern of molesting girls under
age 14. The prosecutor explained that if the jury believed Granados touched
Elisa when she was 10 years old based on a preponderance of the evidence, it
could conclude that he was disposed or inclined to commit those sexual
offenses and use that as a factor in determining whether he committed the
crimes for which he was charged. She argued that it was only one factor to
consider, and convictions could not be based on that factor alone. The People
also explained that the ultimate standard for whether they proved their case
was proof beyond a reasonable doubt.
2. CALCRIM No. 1191A
Granados acknowledges he did not object to the use of CALCRIM
No. 1191A, which would typically result in forfeiture of the issue on appeal.
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 471; People v. Bolin (1998)
18 Cal.4th 297, 326.) However, he contends the instructional error affected
substantial rights because its use was prejudicial, and so no objection was
necessary to preserve his claim. (People v. Hudson (2006) 38 Cal.4th 1002,
28
1012 [concluding no objection required if instruction is incorrect statement of
law]; People v. Prieto (2003) 30 Cal.4th 226, 247 [reviewing claim of
instructional error based on argument the alleged error affected substantial
rights].) We review a claim of instructional error de novo. (See People v.
Berryman (1993) 6 Cal.4th 1048, 1089.)
Granados contends CALCRIM No. 1191A should only be given if the
evidence of uncharged sexual misconduct comes from third parties, and not
one of the victims herself. The theory is that when a victim-witness proffers
evidence of an uncharged crime, it allows proof of an ultimate fact by a
preponderance of the evidence rather than by reasonable doubt. Thus, he
contends the use of CALCRIM No. 1191A created confusion.
However, “[n]othing in [Evidence Code] section 1108 limits its effect to
the testimony of third parties. Instead, the statute allows the admission of
evidence of uncharged sexual offenses from any witness subject to [Evidence
Code] section 352.” (Gonzales, supra, 16 Cal.App.5th at p. 502.) Further, as
the court explained in Gonzales at page 502, CALCRIM No. 1191 “also
instructs that the uncharged offenses are only one factor to consider”; that
such testimony is “not sufficient to prove by [itself] that the defendant is
guilty of the charged offenses; and . . . the People must still prove the charged
offenses beyond a reasonable doubt.” (See also People v. Reliford (2003) 29
Cal.4th 1007, 1011-1016 (Reliford) [rejecting similar challenge to predecessor
jury instruction CALJIC No. 2.50.01].) In other words, the use of the
instruction does not reduce the People’s burden of proof or incorrectly state
the law.
Count 1 alleged Granados violated section 288, subdivision (a) because
Elisa was under age 14 at the time of charged acts. Elisa testified that she
had been Granados’s victim long before that, as early as age 10. The

29
prosecutor used this information, which related to an uncharged crime, to
argue Granados had a pattern of and propensity for molesting girls under age
14. Although the evidence here supported count 1, which charged Granados
with lewd and lascivious conduct against Elisa when she was under age 14,
the prosecution did not focus its argument there. Instead, it asked the jury to
conclude the People proved by a preponderance of the evidence that Elisa was
molested when she was 10 years old and to take that conclusion into
consideration when evaluating more broadly whether he committed other
offenses. The prosecutor did not direct the jury to consider the testimony
regarding the uncharged crimes to support any particular count, and
Granados does not argue the instruction was improper with respect to
counts 2, 3, or 4.
Moreover, the People clearly explained how the burden of proof detailed
in CALCRIM No. 1191A regarding the uncharged crime functioned, and they
stated such a finding could not be the sole reason for a guilty verdict. The
evidence regarding uncharged crimes related to Elisa’s age, and the
prosecutor utilized the information to support the argument that Granados
had a pattern of molesting girls under the age of 14. It was not error to offer
this instruction.
3. Evidence Code Sections 352 and 1108
Although Granados did not object to the use of CALCRIM No. 1191A,
he did oppose a motion to admit the evidence of the prior uncharged crimes
against Elisa pursuant to Evidence Code section 1108, arguing the inclusion
of such evidence was highly prejudicial and would confuse the jury. He
claims the prior crimes evidence was generic and thus held no probative
value to demonstrate propensity.

30
 Evidence Code Section 1108 allows the admission of uncharged sexual
acts to show the defendant’s propensity to commit sexual offenses. This
section is a significant departure from the general rule that evidence of
propensity to commit a crime is not admissible. (People v. Villatoro (2012)
54 Cal.4th 1152, 1159-1160.) The admissibility of such evidence depends on
the trial court’s review of the proposed testimony in light of Evidence Code
section 352, weighing its probative value against its prejudicial effect.
(People v. Loy (2011) 52 Cal.4th 46, 61-62 (Loy); People v. Falsetta (1999)
21 Cal.4th 903, 917 (Falsetta); Reliford, supra, 29 Cal.4th at p. 1012;
Gonzales, supra, 16 Cal.App.5th at p. 502.)
In deciding whether to admit sex-act evidence, courts consider a
number of factors identified in case law, including the nature of the acts, the
relevance to current issues, remoteness, degree of certainty of commission,
the likelihood of misleading or confusing jurors or distracting them from the
principal inquiry regarding the charged offenses, the similarity of the acts to
the current offenses, potential prejudicial impact on jurors, the burden on the
defendant’s ability to defend, and the availability of less prejudicial
alternatives to the admission of the sex offense evidence. (Falsetta, supra,
21 Cal.4th at p. 917.) We review the admissibility of Evidence Code section
1108 evidence for an abuse of discretion, and we will not overturn such a
decision absent a clear showing the trial court’s actions were unreasonable or
arbitrary. (People v. Lewis (2009) 46 Cal.4th 1255, 1286; People v. Robertson
(2012) 208 Cal.App.4th 965, 991.)
Here, the court permitted Elisa to testify that Granados’s molestation
began around age 10 or 11. The testimony about her age when the abuse
began was relevant because it helped demonstrate a pattern of behavior and
Granados’s propensity toward molesting young girls. Granados does not

31
argue otherwise. Instead, he contends it was error to admit the evidence
because it lacked any probative value, since she simply “repeat[ed] the claim
that the same generic events happened before she was 13.” In essence, he
maintains that the testimony was too vague to be relevant. Elisa testified
that she moved to Calaveras Street when she was around 10 and a half or
11 years old, and that’s when the molestation began. Thus, the testimony
was specific about the age at which the touching began, which was its
primary purpose. The lack of testimony about the details of what specific
touching occurred on which dates does not make the probative nature of the
evidence, which regarded Elisa’s age at the time of the molestation began,
irrelevant.
Granados does not explain why the probative value is outweighed by
any prejudice resulting from the testimony. Nor does he explain why the jury
would be confused to hear that Granados touched Elisa starting around age
10 and a half, but he was only charged with conduct that occurred when Elisa
was older. In short, Granados does not seriously challenge the
reasonableness of the court’s decision to admit the evidence. We, likewise,
cannot find the court abused its discretion here.
Granados separately argues the evidence was highly prejudicial
because it allowed the jury to evaluate its truthfulness under a
preponderance standard that lowered the prosecution’s burden on the issue of
Elisa’s credibility. As we detailed ante, this is simply not so. The admission
of evidence under Evidence Code section 1108 does not affect the ultimate
burden of proof at trial. (See, e.g., Reliford, supra, 29 Cal.4th at pp. 1011-
1016.)

32
 4. Due Process Claim
Granados invites us to reexamine the legal premises for admitting
evidence of uncharged sexual offenses, contending it violates state and
federal Constitutions. As Granados recognizes, our Supreme Court has
concluded Evidence Code section 352 saves Evidence Code section 1108 from
a due process challenge. (Falsetta, supra, 21 Cal.4th at p. 917.) Further,
when asked to reconsider the holding in Falsetta, our high court found no
good reason to do so. (Loy, supra, 52 Cal.4th at pp. 60-61 [adhering to
Falsetta and noting the Ninth Circuit held similar federal rule to be
constitutional].) We are bound by the opinions of our Supreme Court. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
F. Attempt Instruction
Granados contends the court erred by failing sua sponte to offer
instructions for the lesser-included offense of attempted lewd and lascivious
acts on a child under section 288, subdivision (a). We review the failure to
instruct on an uncharged, lesser-included offense de novo. (People v. Waidla
(2000) 22 Cal.4th 690, 733 (Waidla).)
Courts must instruct on a lesser-included offense “whenever evidence
that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury. [Citation.]” (People v. Breverman (1998) 19
Cal.4th 142, 162.) Substantial evidence is evidence from which a reasonable
jury could conclude the defendant committed the lesser offense but not the
greater offense. (Ibid.) “ ‘ “W]hen there was no evidence that the offense was
less than that charged,” ’ ” the court is relieved of its duty to instruct the jury
on the lesser-included offense. (People v. Valdez (2004) 32 Cal.4th 73, 115.)
In general, “an attempt to commit a crime is a lesser included offense of
the completed crime.” (People v. Ngo (2014) 225 Cal.App.4th 126, 156.)

33
Attempt can be distinguished from the substantive offense by the failure to
complete the act, but the elements of the attempted offense are otherwise
included in the greater offenses. (Ibid.) A defendant violates section 288,
subdivision (a) when he “willfully and lewdly commits any lewd or lascivious
act, . . . upon or with the body, or any part or member thereof, of a child
under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child. . . .”
To demonstrate an attempted violation of section 288, subdivision (a), the
People must show the defendant intended to commit a lewd or lascivious act
with a child under age 14, and “the defendant took a direct but ineffectual
step toward committing a lewd and lascivious act with a child under 14 years
of age.” (People v. Singh (2011) 198 Cal.App.4th 364, 368 (Singh).)
“Section 288, subdivision (a), requires a touching, even one innocuous
or inoffensive on its face, done with lewd intent.” (People v. Lopez (1998) 19
Cal.4th 282, 290 (Lopez).) Courts have concluded that “a lewdly intended
embrace innocently and warmly received by a child” may violate section 288.
(Lopez, at pp. 290-291.) And “the absence of an innocent explanation” to
justify the manner of the touching itself may demonstrate the act was
“committed for a sexual purpose.” (People v. Martinez (1995) 11 Cal.4th 434,
452 (Martinez).)
Granados contends evidence supports an attempt charge because he
told authorities that once, while hugging Elisa when she was 14 or 15, he
tried to move his hand to her buttocks over her clothing, but she moved it
away, showing he did not complete the touching. Even if we reach the
conclusion that Granados never touched Elisa’s buttocks with his hands, that
is not sufficient here to require an instruction on the lesser-included charge
because it ignores the remaining facts surrounding the incident(s).

34
 Granados’s statements to Officer Ochoa disclosed that he slid his hand
down Elisa’s back under her clothing and tried to touch her buttocks before
she pulled his hand out. His statements also revealed he hugged Elisa in a
way that was not a normal hug, during which he “lost [his] head,” but did not
“have relations” with her. He explained he felt horny when he hugged Elisa,
that he developed an erection, and that he believed Elisa also felt the
erection. He suggested he thought she might enjoy it, explaining “[I]f she
doesn’t say anything, well, one want[s] to slide the hands down or touch
something.” Further, he revealed that he realized he had made a mistake,
and he regretted it.
He admitted he developed an erection because he felt horny, and he
moved his hand toward Elisa’s buttocks because he thought she might be
interested. This admission shows lewd intent; his actions appealed to his
own lust and his (inaccurate) perception of Elisa’s lust, and it demonstrates
his actions were not innocent. (See § 288, subd. (a); see also Martinez, supra,
11 Cal.4th at p. 452.) Further, his explanation that in retrospect he regretted
it, he “lost [his] head,” and that he never acted that way again because he
knew it was a mistake indicates he understood the lewd intent with which he
behaved was improper. The hug itself shows his actions were not

“ineffectual.”6 (See Singh, supra, 198 Cal.App.4th at p. 368.) And even if a
hug could seem innocuous or inoffensive on its face, because it was done with
lewd intent, he violated section 288. (Lopez, supra, 19 Cal.4th at p. 290.)
Accordingly, the court’s failure to sua sponte offer an instruction on a lesser-
included attempt charge was not an abuse of discretion.

6 Elisa’s testimony provided evidence of additional lewd acts against her
when she was under age 14. However, we focus on the behavior in which
Granados admitted he engaged to demonstrate why an attempt instruction
was not required.
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 G. Fresh Complaint Testimony
1. Additional Facts
The People moved in limine to admit Alyson’s statements to Paloma as
a fresh complaint. The People argued the information was relevant and
corroborated information in a police report drafted by Officer Ochoa,
explaining Karina contacted the police department based on information she
had received from Paloma.
The People argued the nature and circumstances of Alyson’s disclosure
to Paloma were relevant because it showed when something was recorded,
and because it demonstrated Alyson’s testimony was consistent with her
complaint, and it showed that she understood the difference between fantasy
and reality. Further, Alyson reported what happened to Paloma, not to her
mother. And Paloma’s information about how the information came to her
could show why Alyson did not report Granados’s behavior sooner. Paloma
was the first person Alyson told about being touched by Granados,
information that came out while Alyson was in Paloma’s care.
Defense counsel argued the fresh complaint was unnecessarily
bolstering because the same information would be shared by the forensic
interviewer, and there were plenty of reasons to explain why a seven-year-old
might have memory lapses.
The court asked defense counsel to confirm the forensic interview
included the information about how the information was shared with Paloma.
Defense said it was looking, and the court tentatively allowed the fresh
complaint. Both the prosecutor and defense counsel later confirmed there
was no clear reference to Alyson revealing her experiences with Granados to
Paloma in the forensic interview.

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 2. Legal Principles
The fresh complaint doctrine permits “proof of an extrajudicial
complaint, made by the victim of a sexual offense, disclosing the alleged
assault” to be admitted “for a limited, nonhearsay purpose—namely, to
establish the fact of, and the circumstances surrounding, the victim’s
disclosure of the assault to others—whenever the fact that the disclosure was
made and the circumstances under which it was made are relevant to the
trier of fact’s determination as to whether the offense occurred.” (People v.
Brown (1994) 8 Cal.4th 746, 749-750.) The evidence may be used to
corroborate the victim’s testimony, but it may not be used to prove the crime
occurred. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.) Testimony
surrounding the complaint should be “limited to the fact of the making of the
complaint and other circumstances material to this limited purpose.”
(Brown, at p. 763.) We review the admissibility of this evidence for an abuse
of discretion. (Waidla, supra, 22 Cal.4th at p. 723.)
Granados appeals the admission of Paloma’s testimony, not on the
basis that admitting fresh complaint evidence was improper to show that
Alyson reported the touching to her aunt, but on the basis that the content of
the testimony was so detailed that it violated his due process rights. He
essentially contends the testimony was inadmissible hearsay.
3. Forfeiture
A motion in limine can preserve a challenge to the admission of
evidence for appeal (see Evid. Code, § 353) without an objection being
renewed at the time of testimony when the motion makes a specific objection,
is “directed to an identifiable body of evidence,” and is “advanced at a time
when the trial judge could give fair consideration to the admissibility of the
evidence in its context.” (People v. Morris (1991) 53 Cal.3d 152, 189 (Morris).)

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However, a motion in limine does not meet these requirements when the
evidence that is the subject of the motion is difficult to specify until the
evidence is offered. (Id. at pp. 189-190.) In those circumstances, “an
objection at the time the evidence is offered serves to focus the issue and
protect the record.” (Id. at p. 190.) Accordingly, a motion in limine protects
the record on appeal when it specifies a legal ground for exclusion that is the
same ground subsequently raised on appeal, is directed to a particular,
identifiable body of evidence, and is made at a time when the judge can
determine the evidentiary value of the evidence in context. (Ibid.) But “if a
motion in limine does not satisfy each of these requirements, a proper
objection satisfying Evidence Code section 353 must be made to preserve the
evidentiary issue for appeal.” (Morris, at p. 190.)
Defense counsel failed to object to the substance of the testimony that
Granados now contends went beyond the confines of what information is
permissible for a fresh complaint. Granados did not file a motion in limine
seeking to exclude such evidence, and he did not object to the introduction of
the evidence at trial. In his response to the People’s motion in limine to
include Paloma’s fresh complaint testimony, Granados’s attorney opposed the
evidence on the ground that it would improperly bolster Alyson’s testimony,
based on his belief that the same information would be provided by the
forensic interview. But he later confirmed that the same information was not
included in Alyson’s forensic interview, and he did not object to the
introduction of the evidence on any other basis at that time. Thus, the
motion in limine does not preserve this issue on appeal because the legal
ground for exclusion raised at the hearing (improper bolstering through
redundant evidence) is not the same challenge Granados makes on appeal.
(See Morris, supra, 53 Cal.3d at p. 190.)

38
 Even had defense counsel properly preserved the issue for appeal, we
would find no abuse of discretion here. Contrary to Granados’s claim that
Paloma’s testimony “went well beyond the admissible boundaries of fresh
complaint evidence” because it included specific details, Paloma’s testimony
only revealed that Alyson told her that Granados had touched her private
parts over and underneath her clothing. It did not disclose the details of
Granados licking her or touching her buttocks with his hand. It did not
detail when the molestation took place, when it began, or how frequently it
occurred. This testimony described information relevant to explain why
Paloma shared the information with Karina and why Alyson did not come
forward sooner.
Further, even had the court erred in admitting the testimony, it did not
result in prejudice. Granados contends the evidence violated due process
because Paloma’s retelling of Granados’s acts improperly bolstered Alyson’s
credibility. But Alyson’s interview with Limon was played at trial and
Alyson herself testified at trial. The jury did not need to rely on secondhand
statements because it was able to consider Alyson’s credibility directly.
Finally, we are not persuaded by Granados’s contention that the failure
to object to the testimony or request a limiting instruction constituted
ineffective assistance of counsel. We lack any information regarding defense
counsel’s rationale for failing to object to Paloma’s testimony or for failing to
seek a limiting instruction. Perhaps defense counsel decided not to object
because he believed the information was not improper under fresh complaint
doctrine, the conclusion we drew ante. Perhaps he failed to object or seek a
limiting instruction because he believed it would emphasize Paloma’s

39
testimony. Whatever defense counsel’s reasoning was, the record does not
reflect it; thus, this issue is more appropriately reviewed on habeas corpus
petition. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
H. Cumulative Error
Granados argues that even if no single error were prejudicial in its own
right, their combined effect was to lower the burden of proof and strengthen
the People’s case, establishing cumulative error. Having determined the
court here did not commit any errors, there is likewise no cumulative,
prejudicial error. (Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1053-1054
[no cumulative effect of error when no error]; see Jiagbogu v. Mercedes-
Benz USA (2004) 118 Cal.App.4th 1235, 1246 [“Since there is no error in
these individual rulings, there is, of course, no cumulative error”].)
DISPOSITION
The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

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