HALLER, J.
A jury convicted defendant of 19 counts of sexually abusing two of his daughters (V.S. and I.S.) when they were minors (Pen. Code, § 288, subd. (a)),
In 1995, defendant was convicted of three counts of committing lewd acts on his daughter, E.S., between June 1992 and June 1993, when she was between three and four years old. The court sentenced defendant to 10 years in prison. He was released in 2000.
In 2012, defendant was charged with 23 counts of sexually abusing three of his other daughters. Seventeen of those counts arose from defendant's sexual abuse of his daughter V.S. in 1988, when she was 13; two arose from his sexual abuse of his daughter I.S. between 2004 and 2011, when she was seven or younger; and four arose from his alleged sexual abuse of his daughter K.S. between 2006 and 2011, when she was five or younger.
Defendant's daughter, V.S., was born in 1974. Her mother left with her when she was six months old, so V.S. first met defendant at age 11 and they began a father-daughter relationship. During a visit to his home when V.S. was around 11 or 12 years old, defendant tried to touch her vaginal area while she was falling asleep on the couch. V.S. was shocked and moved away, but neither said anything. They continued to have a father-daughter relationship, and there was no further inappropriate touching until V.S. was 13.
V.S.'s mother suffered from mental health issues and was physically and verbally abusive to her. When V.S. was 13, her mother threw a glass mayonnaise jar at her head, but missed. This prompted V.S. to move in with defendant and his then-wife, Esther, who was pregnant with defendant's daughter, E.S.
Defendant began sexually abusing V.S. as soon as she moved in. The first incident occurred when defendant touched V.S.'s vagina while she was sleeping in her bed. V.S. told him it made her angry, but defendant responded, "You're not angry because I'm touching you. You're angry because you like it." This confused and shamed V.S.
After the first incident, defendant continuously abused V.S. in his work van. Every day, he touched V.S.'s vagina and performed oral sex on her.
When V.S. turned 14, defendant's abuse of her escalated to daily sexual intercourse.
Esther noticed unusual behavior between defendant and V.S. One night she found defendant kneeling over V.S.'s bed while he was wearing only bikini brief underwear. Esther also saw V.S. sit on defendant's lap while one or both of them were in their underwear. Defendant told Esther he thought a father should "have" his girls before they married or had relationships with anyone else. In early 1989, defendant and Esther separated.
After the separation, V.S. lived with defendant in various locations. When they lived with defendant's girlfriend, Karen Spearman, she noticed inappropriate behavior. Defendant and V.S. walked around naked in front of each other. On one occasion, defendant entered the bathroom naked while V.S. was showering and shut the door. Another time, when Spearman came home and found defendant and V.S. naked, defendant explained he was cuddling V.S. in bed.
Later, when defendant and V.S. no longer lived with Spearman, defendant's then 16- or 17-year-old niece stayed with them for about six months. V.S. and the niece shared a bedroom, but V.S. slept in defendant's room every night. The niece walked in on defendant and V.S. having sex one morning. Defendant offered the niece money to have sex with him, but she declined and promptly moved out.
Defendant's sexual relationship with V.S. continued until she was 20 years old. It ended in 1995 when defendant was convicted of sexually abusing E.S. and became incarcerated.
V.S. never told anybody about defendant's sexual abuse while it was happening. Defendant told her that if she ever told anyone, he would deny it and then she would have no one to look out for her or love her. It was not until 2005, when V.S. watched an episode of Oprah, that she realized how wrong defendant's conduct was. V.S. became worried for defendant's other daughters, so she called child protective services (CPS). CPS was unable to take action because V.S. did not know defendant's whereabouts.
In 2011, V.S. learned defendant stood accused of sexually abusing two of his other daughters, I.S. and K.S.
Defendant met C.S. in 2000 and married her a few years later. In December 2004, C.S. gave birth to defendant's daughter, I.S. I.S. is developmentally delayed and has difficulty processing information. In October 2006, C.S. gave birth to another of defendant's daughters, K.S. K.S. is developmentally delayed and physically disabled.
In August 2011, I.S. told C.S. she had put a heart-shaped rock in her vagina. C.S. took I.S. to the children's hospital, where a pediatric surgeon removed the rock.
A few weeks later, I.S.'s maternal aunt talked to I.S. at a family birthday party. Regarding the rock, I.S. told her aunt, "`My daddy did it.'" I.S. also wanted her aunt to "[s]tay in [I.S.'s] room with [her] at nighttime, because [her] dad comes in at nighttime." Later, I.S. told her aunt she was scared because defendant "touches [her]" and "put tape on [her] mouth and rubbed [her] leg." The aunt called CPS.
In October 2011, CPS alerted the police, who, in turn, scheduled an examination of I.S. Dr. Joyce Adams, a specialist in pediatric sexual abuse cases, examined I.S. Adams found multiple healed tears in I.S.'s hymen, as well as a genital wart. This suggested sexual abuse.
I.S. underwent a four-part forensic interview with Laurie Fortin, a licensed clinical social worker who specializes in child sexual abuse. During the interviews, I.S. denied defendant touched her inappropriately. However, at the preliminary hearing, I.S. testified defendant "touched her private part with his private part."
I.S. testified at trial that defendant repeatedly touched her vagina with his penis. He told her not to tell anyone, and she feared that if she did she would end up in foster care or defendant would whip her (he whipped her with a belt when she wet the bed).
As a result of his 1995 convictions for sexually abusing E.S., defendant was required to register annually with law enforcement within five working days of his birthday or upon a change of residence. (§§ 290, 290.012, 290.013.) In April 2011, defendant timely registered his address as the apartment he shared with C.S., I.S., and K.S. Defendant stopped living in that apartment in October 2011, and began living in space belonging to the Association of Black Contractors in late 2011 or early 2012. As of April 2012, defendant had not notified law enforcement of his change in residence.
Defendant was charged with 23 counts of committing a lewd or lascivious act on his minor daughters (§ 288, subd. (a)) and two counts of failing to register as a sex offender (§§ 290.013, subds. (a)-(b), 290.018, subd. (b)). Counts 1 through 4 related to defendant's alleged sexual abuse of K.S.; counts 5 and 6 related to his sexual abuse of I.S.; counts 7 through 23 related to his sexual abuse of V.S. in 1988; and counts 24 and 25 related to his failure to register as a sex offender.
As to counts 1 through 6, the information specially alleged that defendant was previously convicted of violating section 288, subdivision (a) (§ 667.61, subds. (a), (c) & (d)), that there were multiple victims (§ 667.61, subds. (b), (c) & (e)), and that defendant engaged in substantial sexual conduct with the victims (§ 1203.066, subd. (a)(8)). The information further alleged that counts 7 through 23 were timely filed. (§ 803, subd. (f)). Finally, the information alleged defendant had three prior serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and three prior strike convictions (§§ 667, subds. (b)-(i), 668, 1170.12).
The jury deadlocked on counts 1 through 4, but returned guilty verdicts on all the remaining counts and found true the associated special allegations. Defendant admitted the prior conviction allegations were true. The trial court sentenced defendant to an indeterminate term of 185 years to life, and a consecutive determinate term of 40 years.
The trial court allowed the prosecutor to admit defendant's 1995 convictions for sexually abusing E.S. as propensity evidence under Evidence Code section 1108, subdivision (a).
Before trial, the prosecutor identified certain propensity evidence she intended to introduce at trial. That evidence included defendant's 1995 convictions for sexually abusing E.S. The prosecutor explained that as a matter of efficiency, she planned to introduce just the certified convictions without any live testimony from witnesses about the circumstances of the convictions.
Defense counsel opposed this approach. She acknowledged "the certified records of conviction would certainly show [E.S.] was molested," but argued E.S. later admitted to others she was coerced into falsely saying defendant had sexually abused her. Therefore, defense counsel argued that if the convictions were admitted, she should be able to "impeach" them. However, because she could not locate E.S., she indicated she would impeach the conviction with the testimony of those to whom E.S. supposedly recanted, even though counsel acknowledged "[i]t's not quite proper with me attacking the conviction with hearsay. . . ." Defense counsel acknowledged her approach would require "a trial within a trial" that would consume "at least" two weeks of trial time.
The trial court ruled the convictions were admissible and found that defendant's purported impeachment evidence was irrelevant because it would not change the fact of the fully litigated convictions. The trial court further excluded defendant's evidence as unduly time-consuming under Evidence Code section 352.
Defendant later renewed his request to attack the convictions with hearsay testimony that E.S. denied she was sexually abused. The trial court confirmed its prior ruling, declining to "hav[e] a little mini Jerry Springer Show" that explored the family dynamics that might have led E.S. to tell different versions of her story to different people at different times. The court clarified it would allow defendant to also oppose the propensity evidence with testimony of "somebody of a similar age" of his victims who would state "I was with him during whatever the time period is, and he didn't try to molest me."
The impeachment issue arose during trial. On cross-examination, defense counsel asked V.S. why, during defendant's prosecution for sexually abusing E.S., V.S. supposedly lied by denying defendant had sexually abused her. The following exchange occurred:
V.S. then testified that she, E.S., and defendant "would hang out together" after defendant was released from prison.
On recross-examination, defense counsel tried to explore V.S.'s basis for believing defendant's claim he had not sexually abused E.S.
Defense counsel argued that V.S.'s testimony had opened the door for her to ask about E.S.'s hearsay statements. The trial court disagreed and reaffirmed its earlier ruling.
Before defendant took the witness stand, his counsel again raised the impeachment issue. The trial court reaffirmed its ruling under Evidence Code section 352, but reiterated that defendant could deny that he sexually abused E.S. and clarified that defendant could also argue E.S. would not have lived with him again (as she did) had defendant truly sexually abused her.
Defendant testified he did not molest E.S. or his other daughters. When defendant's counsel asked him the circumstances under which E.S. came back into his life after he served his prison sentence for sexually abusing her, defendant responded, "[E.S.] confessed to me that she knew I had not—" The trial court sustained the prosecutor's hearsay objection. When defendant's counsel asked him why he let E.S. move in with him, he responded, "Because she had—because she had confessed that she knew I didn't—" The trial court again sustained the prosecutor's hearsay objection.
During closing argument, defense counsel argued V.S. knew defendant had not sexually abused E.S. and would not have allowed her to live near defendant if he had. Counsel elaborated:
Later, during closing argument, defense counsel argued, without objection, "Why would this man bring in his daughter that he molested, who actually sent him to prison in 1995, into his home if he was molesting his children? . . . A reasonable interpretation as to why he would let [E.S.] come back into his home is because she confessed to him nothing happened and he said, I forgive you."
Evidence Code section 1108 sets forth an exception to the general rule against the use of evidence of a defendant's misconduct apart from the charged offense to show a propensity to commit crimes. (People v. Robertson (2012) 208 Cal.App.4th 965, 989-990.) When a defendant is charged with a sex offense, Evidence Code section 1108 allows admission of evidence of other sex offenses to prove the defendant's disposition to commit sex offenses, subject to the trial court's discretion to exclude the evidence under Evidence Code section 352. (Evid. Code, § 1108, subd. (a); Robertson, at p. 990.) Evidence Code section 1108 is premised on the recognition that sex offense propensity evidence is critical in sex offense cases "`given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.'" (People v. Falsetta (1999) 21 Cal.4th 903, 918.)
Under Evidence Code section 1108, the prosecution must prove only by a preponderance of the evidence that the defendant committed a prior sexual offense. (People v. Lopez (2007) 156 Cal.App.4th 1291, 1299.) Court records of the defendant's prior conviction for a sex offense "may be offered to prove not only the fact of a conviction, but the commission of the underlying offense." (People v. Duran (2002) 97 Cal.App.4th 1448, 1461; see People v. Wesson (2006) 138 Cal.App.4th 959, 967-968; Evid. Code, § 452.5, subd. (b)(1) ["An official record of conviction . . . is admissible . . . to prove the commission . . . of a criminal offense. . . ."].)
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (Id. at pp. 1124-1125.)
"[A] state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon" a defendant's "general right to offer a defense through the testimony of his or her witnesses." (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 ["Although completely excluding evidence of an accused's defense theoretically could rise to [the level of impermissibly infringing on a defendant's right to present a defense], excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense."].)
The trial court did not abuse its discretion by excluding defendant's rebuttal evidence as unduly time-consuming under Evidence Code section 352. Defense counsel conceded her impeachment approach would result in not only one tremendous "trial within a trial"—"[a]t least" two weeks "just on [E.S.]"—but would actually result in two: "rehashing the entire trial, plus what happened after." (Italics added.)
The prosecution agreed that if defendant sought to impeach E.S.'s 1995 trial testimony, the prosecution would be forced to retry the entire case by presenting all the evidence in addition to E.S.'s trial testimony.
Defense counsel and the prosecutor agreed the second mini-trial—addressing E.S.'s supposed subsequent recantations and the circumstances surrounding them—would also be extensive. Defense counsel stated, "I would have a list of witnesses that would come in to impeach [E.S.] or impeach whatever in that trial. You're looking at two weeks just on [E.S.]. At least." She elaborated that the "can of worms that is being opened" would contain a lawsuit that defendant filed against E.S. over an unpaid phone bill and an elder abuse complaint E.S.'s grandmother filed against her. The prosecutor identified additional "worms": that one of E.S.'s "recantations"
The current trial consisted of eight court days of argument and testimony. The trial court did not abuse its discretion by declining to permit a full-blown trial on an ancillary impeachment issue that would have more than doubled the length of trial.
Further, the trial court's ruling did not, as defendant asserts, "deprive[] . . . defendant of all evidence concerning the theory of defense." Instead, the court's evidentiary ruling was limited to certain evidence intended to rebut a single item of propensity evidence. The court's ruling did not preclude defendant from defending against the merits of the prosecution's pending case. And even as to the narrow issue of propensity evidence, the court ruled defendant could (1) deny he sexually abused E.S.; (2) accuse her of lying about it; (3) argue that her living with him later undermined her claim; and (4) present character evidence that he did not molest other children when presented with similar opportunities. The record shows defendant did, in fact, (1) deny he sexually abused E.S.; (2) elicit from V.S. that she believed defendant when he said he did not molest E.S. and that "there were things that were said" to her that caused her to believe that; and (3) argue in closing that "[a] reasonable interpretation as to why [defendant] would let [E.S.] come back into his home is because she confessed to him nothing happened. . . ." Defendant was not completely deprived of an opportunity to present an adequate defense.
Defendant's only argument on appeal regarding undue consumption of time is that "the more extensive and time consuming the evidence that [defendant] did not molest [E.S.] the greater the importance of the evidence to [his] defense." We reject this reasoning as circular—it would effectively read the undue-consumption-of-time element out of Evidence Code section 352.
Finally, none of defendant's cited cases support his argument that the trial court was required to admit his impeachment evidence. People v. Cottone (2013) 57 Cal.4th 269 is distinguishable because it involved uncharged prior conduct and addressed whether the defendant's maturity was a relevant factor in evaluating whether he had a propensity to commit sexual offenses. (Id. at pp. 278, 290.) Here, defendant was charged with sexually abusing E.S. and his maturity was not at issue. People v. Griffin (1967) 66 Cal.2d 459, 465 and People v. Mullens (2004) 119 Cal.App.4th 648, 662-663 are distinguishable because the trial courts admitted evidence of charged prior sexual offenses but excluded evidence that the defendants had been acquitted of those charges. By contrast, defendant was convicted of sexually abusing E.S. People v. Callahan (1999) 74 Cal.App.4th 356 is unpersuasive because that court "conclude[d] that when the prosecution introduces evidence under [Evidence Code] section 1108 of the defendant's commission of another sexual offense or offenses, the defendant is not precluded from introducing evidence of specific instances of his good behavior under similar circumstances." (Id. at p. 360.) Here, the trial court ruled defendant could do precisely that.
On this record, we find no abuse of discretion in the trial court's exclusion of admittedly time-consuming evidence aimed at impeaching E.S.'s testimony during the trial that led to defendant's 1995 conviction.
Defendant contends the trial court committed reversible error by instructing the jury not to consider for their truth I.S.'s statements during pretrial forensic interviews that defendant did not sexually abuse her. The People concede this instruction was erroneous, but assert it was harmless in light of the record and overall charge to the jury. We agree.
At trial, recordings of four forensic interviews of I.S. were played for the jury without objection. The parties appear to have agreed they were admissible as prior inconsistent statements. (Evid. Code, § 1235.) Although I.S. testified at trial that defendant sexually abused her, in the interviews she denied any sexual abuse occurred.
Clinical and forensic psychologist Joanna Edwards testified on defendant's behalf regarding children's "suggestibility" during interviews. Edwards considered I.S.'s earlier denials when assessing the reliability of her later testimony.
Even though counsel agreed I.S.'s forensic interviews had not been admitted for a limited purpose (that is, they were admitted for their truth), the trial court instructed the jury to the contrary with CALCRIM No. 360:
The court also instructed the jury with CALCRIM No. 318:
In closing argument, defense counsel repeatedly encouraged the jury to believe I.S.'s statements during her forensic interviews over her trial testimony:
During deliberations, the jury requested the video of K.S.'s (but not I.S.'s) forensic interview. The request was granted without objection. Although the jury requested several witnesses' trial transcripts, Edwards's was not among them.
We review de novo the propriety of jury instructions. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In reviewing a claim of instructional error, the ultimate question is whether ` there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.'" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220 (Hajek); see generally People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Accepting the People's concession that the trial court erred by instructing the jury with CALCRIM No. 360 in light of the admission of I.S.'s forensic interviews under a hearsay exception, we conclude the error was harmless.
"[A]ny theoretical possibility of confusion" (Hajek, supra, 58 Cal.4th at p. 1220) was eliminated by defense counsel's encouragement to jurors that they "[g]o back and look at those interviews" when evaluating the veracity of I.S.'s testimony. The encouragement was wholly unrelated to the validity of Edwards's opinions. That any confusion is merely theoretical is borne out by the jury's request for K.S.'s forensic interview and not Edwards's trial testimony—jurors would not have requested K.S.'s interview alone if they did not believe they could consider it independently from Edwards's opinions. Moreover, the fact that the jury deadlocked on the counts relating to K.S.—despite her trial testimony that defendant never sexually abused her—suggests the jurors who were willing to convict defendant on those counts considered K.S.'s statements during her forensic interviews for their truth.
Defendant cites People v. Clark (2011) 52 Cal.4th 856 (Clark) to support the proposition that CALCRIM No. 360 "would interfere with defense attempts to use the statements relied upon by an expert for their truth." Clark is inapposite. There, the Supreme Court—after finding the defendant forfeited the issue—rejected the defendant's claim that the trial court erred by not instructing with CALCRIM No. 360's predecessor, CALJIC No. 2.10. (Clark, at p. 942.) Here, defendant asserts the trial court erred by instructing with CALCRIM No. 360. The Clark court's speculation about what "might have" happened had the court instructed the jury with CALJIC No. 2.10 is not instructive here. (Clark, at p. 942.)
On this record, we conclude there is no reasonable likelihood the jury believed it could not consider I.S.'s forensic interviews for their truth. Thus, any instructional error was harmless.
The statute of limitations for a violation of section 288, subdivision (a) is normally six years. (§ 800; People v. Smith (2011) 198 Cal.App.4th 415, 424 (Smith).) If it has expired, it may be reopened for a one-year period beginning when the victim first reports to a law enforcement agency the commission of a crime involving substantial sexual conduct. (§ 803, subd. (f)(1), (2)(B); Smith, at p. 424.) Defendant asserts V.S. first reported the crimes committed against her to law enforcement in 2005, while the People assert she first reported them in 2011.
To establish the prosecution was timely, the prosecutor sought to show during V.S.'s direct examination that she first reported the details of defendant's sexual abuse of her to law enforcement in November 2011. V.S. testified she met with Detective Burow on November 28, 2011, and told him "[a]ll the incidents that happened when [she was] 13 years old in 1988[.]" When asked if this was her first disclosure to "law enforcement," V.S. initially stated she "called the police" after watching an episode of Oprah in 2005 to warn them defendant might molest his other daughters. V.S. later clarified the 2005 call was to CPS and that 2011 was the first time she disclosed the sexual abuse to police.
On cross-examination, defense counsel sought to establish the 2005 call was to law enforcement, not CPS. V.S. answered "[y]es" to leading questions that asked whether she "contacted the police department," "pick[ed] up a phone and contact[ed] a police officer," and had a "conversation . . . with the police officer about briefly what happened to [her.]"
On redirect examination, the prosecutor showed V.S. a report from CPS dated November 15, 2005. V.S. read the report and testified it refreshed her recollection that her 2005 call was to CPS and that her 2011 report to Detective Burow was her first report of the sexual abuse to law enforcement.
On recross-examination, V.S. again responded "[y]es" to leading questions that asked if she "contacted the police department" and "told the police department that [she] had been molested."
V.S. also testified regarding the extent of her disclosure in 2005. Initially, when asked if she "disclose[d] . . . in detail" in 2005 "all the details that [she] provided . . . in court," V.S. responded, "Probably. I don't remember." However, she later clarified that in 2005 she gave only a "general report" that she had been sexually abused; she "didn't give any details." V.S. testified repeatedly that her 2011 report to Detective Burow was "the first time [she] ever sat down with a police officer and provided all of those details about what happened to [her]." She acknowledged on re-redirect examination that "[i]n no uncertain terms did [she] ever report to any California law enforcement agency before November 28, 2011 specific acts of the defendant touching [her] vagina with his hand" or orally copulating her when she was 13. Defense counsel's questioning conceded V.S. did not disclose the details of her molestation in her 2005 report.
Detective Burow testified he interviewed V.S. on November 28, 2011. V.S. reported to him that defendant touched her vagina with his hand, orally copulated her, and had her orally copulate him when she was 13. V.S. also told Burow this was her first report of the abuse to law enforcement. Burow verified this claim by reviewing a regional law enforcement database that contains records dating back seven to 10 years, and city-wide police records of child abuse reports that are retained for at least 10 years. Burow's review of the database and records did not reveal any prior report by V.S.
The prosecutor offered the following jury instruction regarding the extended statute of limitations' triggering date:
Defense counsel objected and instead offered a general instruction on statute of limitations (CALCRIM No. 3410). The court used the prosecutor's instruction.
"Ordinarily, the statute of limitations for a violation of section 288, subdivision (a) is six years under section 800." (People v. Maguire (2002) 102 Cal.App.4th 396, 399.) However, section 803, subdivision (f) "allows the prosecution to file an action after the expiration of the six-year statute when: (1) a victim of any age reports to a California law enforcement agency a violation that occurred while the victim was under age 18; (2) the crime involves `substantial sexual conduct'; (3) independent evidence clearly and convincingly corroborates the victim's allegation; and (4) the criminal complaint is filed within one year of the date the report was made to law enforcement." (Maguire, at pp. 399-400 [discussing former section 803, subdivision (g)].) There are two significant nuances to these triggering criteria. First, the report must be made to a law enforcement agency; a report to CPS is insufficient. (Maguire, at pp. 399-400.) Second, the report "must refer to unlawful sexual abuse acts involving substantial sexual conduct"; a general report of sexual abuse is insufficient. (People v. Superior Court (Maldonado) (2007) 157 Cal.App.4th 694, 702.)
"`Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender," excluding "masturbation that is not mutual." (§§ 1203.066, subd. (b), 803, subd. (f)(2)(B).) This exclusion "refers to a defendant's self-masturbation in the presence of the victim." (People v. Terry (2005) 127 Cal.App.4th 750, 771 (Terry), citing People v. Lamb (1999) 76 Cal.App.4th 664, 679 (Lamb).) Therefore, a defendant's "acts in masturbating the victim fall within the definition of mutual masturbation." (Lamb, at p. 682; see Terry, at p. 771.)
Although the prosecution bears the burden of proving each element of an offense beyond a reasonable doubt, "the statute of limitations is not an ingredient of an offense but a substantive matter for which the prosecution's burden of proof is a preponderance of the evidence." (People v. Riskin (2006) 143 Cal.App.4th 234, 241.)
As discussed above, we review de novo the correctness of the trial court's instructions to the jury. (People v. Posey, supra, 32 Cal.4th at p. 218.) The trial court has no duty to give an instruction that is not supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 30.) In this regard, substantial evidence is "evidence sufficient to `deserve consideration by the jury,' not `. . . any evidence . . . presented, no matter how weak.'" (People v. Williams (1992) 4 Cal.4th 354, 361.)
The trial court did not err by instructing the jury that the extended statute of limitations was triggered in 2011 rather than 2005. First, no substantial evidence supports defendant's claim that V.S. reported sexual abuse to a law enforcement agency in 2005. Rather, the record is clear that V.S.'s 2005 report was to CPS. She so testified on direct examination. After defense counsel's cross-examination led V.S. to adopt references to "police" and "law enforcement," V.S. clarified on redirect—after reviewing the 2005 CPS report documenting her call—that her call was to CPS. V.S.'s affirmative responses to defense counsel's leading questions demonstrate only that V.S., as a lay witness, did not appreciate the significance of the legal distinction between CPS and a law enforcement agency.
Even if V.S.'s 2005 report had been to a law enforcement agency, it still would not have triggered the extended statute of limitations because V.S. did not report "substantial sexual conduct" (§ 1203.006, subd. (a)(8))—she gave only a "general report" that she had been sexually abused, without "giv[ing] any details." V.S. testified consistently that, "[i]n no uncertain terms," her first report of the details of defendant's sexual abuse of her was to Detective Burow in 2011. Defense counsel's questioning conceded as much. Thus, no substantial evidence would have supported a jury instruction premised on V.S. having reported substantial sexual conduct in 2005.
Because no substantial evidence would have supported a jury instruction premised on V.S.'s 2005 report having been made to a law enforcement agency or having disclosed substantial sexual conduct, the trial court did not err by instructing the jury that the extended statute of limitations was triggered in 2011 rather than 2005.
Because we have found only one instance of harmless error with respect to the jury instructions regarding I.S.'s forensic interviews, we reject defendant's claim that cumulative error requires reversal of his convictions. (People v. Bennett (2009) 45 Cal.4th 577, 618 ["With the exception of a single erroneous evidentiary ruling, which was harmless beyond a reasonable doubt, we have rejected all other claims of error; thus there is no cumulative error."].)
The judgment is affirmed.
BENKE, Acting P. J. and NARES, J., concurs.
