Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC056996A
Parrilli, Acting P. J.
INTRODUCTION
Defendant and appellant Italo Arbulu appeals the convictions and sentence imposed following a jury trial on charges of child molestation and other sexual offenses against multiple minor victims. As explained below, we shall remand for amendment of the abstract of judgment in one particular and shall affirm the judgment in all other respects. The facts of the underlying offenses shall be discussed only as necessary to resolve the issues raised.
BACKGROUND
Appellant was a youth soccer and track coach in San Mateo County. On May 7, 2004, appellant was arrested at his home on charges of child molestation after the parents of one of the boys he coached complained to the police. Following appellant’s arrest, other victims came forward. On September 3, 2004, an information was filed charging appellant on 28 counts of sexual offenses against John Does 1 through 6.
During an interview on March 23, 2005, one of the victims, John Doe 3, informed the investigating officer the inappropriate touching against him occurred in October 2001, when he was 14-years old, not October 2000 as he initially reported to police. Based on this revelation and an attendant statute of limitations problem, the People moved to dismiss the two counts against appellant which described offenses against John Doe 3 and file an amended information. At the same time, the People moved to admit the testimony of John Doe 3 pursuant to Evidence Code section 1108 (“section 1108). The People also moved to admit evidence of other uncharged conduct pursuant to section 1108 by way of testimony from John Doe 7 concerning an incident at Lake Tahoe involving appellant. Defense counsel objected to the admission of the section 1108 testimony as a violation of appellant’s rights under the Sixth Amendment, and as irrelevant. The trial court ordered the amended information filed and granted the People’s motion to admit evidence of uncharged sexual offenses against John Doe 3 and John Doe 7. The amended information filed on April 26, 2005, charged appellant as follows:
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).)
CountNo.
Victim
Dateof Offense
Violation
1
JohnDoe 1
Onand between April 1 and April 10, 2004
2
JohnDoe 1
Onor about April 23, 2004
PC§ 288, subd. (a); lewd act on child under 14years
3
JohnDoe 1
Onor about April 23, 2004
PC§ 288, subd. (a); lewd act on child under 14years
4
JohnDoe 1
Onand between April 1 and April 27, 2004
PC§ 288, subd. (a); lewd act on child under 14years
5
JohnDoe 1
Onand between April 1 and April 27, 2004
PC§ 288, subd. (a); lewd act on child under 14years
CountNo.
Victim
Dateof Offense
Violation
6
JohnDoe 1
Onor about April 27, 2004
PC§ 288, subd. (a); lewd act on child under 14years
7
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288a, subd. (c)(1); oral copulation of personunder 14
8
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 286, subd. (c)(1); sodomy of person under 14
9
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); masturbation of child under 14
10
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); masturbation of child under 14
11
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); masturbation of child under 14
12
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); masturbation of child under 14
13
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); masturbation of child under 14
14
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); lewd act on child under 14years
15
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); lewd act on child under 14years
16
JohnDoe
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); lewd act on child under 14years
17
JohnDoe 2
Onand between June 1 and November 7, 2000
PC§ 288, subd. (a); lewd act on child under 14years
18
JohnDoe 4
Onand between July 1, 1998 and June 30, 2000
PC§ 288, subd. (a); lewd act on child under 14years
19
JohnDoe 4
Onand between July 1, 1998 and June 30, 2000
PC§ 288, subd. (a); lewd act on child under 14years
20
JohnDoe 5
Onand between June 15, 1999 and August 31, 1999
PC§ 288a, subd. (c)(1); oral copulation of personunder 14
21
JohnDoe 5
Onand between June 15, 1999 and August 31, 1999
PC§ 288a, subd. (c)(1); oral copulation of personunder 14
22
JohnDoe 5
Onand between June 15, 1999 and August 31, 1999
PC§ 288a, subd. (c)(1); oral copulation of personunder 14
23
JohnDoe 5
Onand between June 15, 1999 and August 31, 1999
PC§ 286, subd. (c)(1); sodomy of person under 14
CountNo.
Victim
Dateof Offense
Violation
24
JohnDoe 5
Onand between June 15, 1999 and August 31, 1999
PC§ 288, subd. (a); lewd act on child under 14years
25
JohnDoe 6
Onand between January 1, 1999 and December 31, 1999
PC§ 288, subd. (a); lewd act on child under 14years
26
JohnDoe 6
Onand between January 1, 2000 and October 7, 2000
PC§ 288, subd. (a); lewd act on child under 14years
All further statutory references are to the Penal Code unless otherwise noted.
As to each count, it was further alleged as to appellant that the offense is a serious felony within the meaning of section 1192.7, subdivision (c)(6). As to counts 9, 10, 11, 12 and 13, it was further alleged as to appellant that in the commission of the offense the victim was under the age of 14-years and appellant had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8). In addition, it was alleged appellant committed an offense specified in section 667.61, subdivision (c) against more than one victim, in violation of section 667.61, subdivision (e)(5).
Presentation of evidence to the jury began on April 26, 2005, with the testimony of Jackie W., mother of John Doe 2. The jury returned its verdict on May 5, 2005, and found appellant guilty on all counts. The jury also found all allegations to be true.
After the jury retired for its deliberations but before it returned its verdict, the parties took up the matter of submitting factors in aggravation to the jury pursuant to Blakely. The prosecutor stated that in the event of a guilty conviction on any of the counts, she wished to submit for jury findings three factors in aggravation as to each victim, namely: the victim was vulnerable; appellant took advantage of a position of trust; and the way the crime was committed indicated planning, sophistication, and professionalism. Over the objection of defense counsel, the trial court intimated it would conduct a mini-trial post-verdict to satisfy Blakely’s requirement that a jury find any factors in aggravation. Defense counsel objected to the trial court’s proposed Blakely procedure. Counsel argued the procedures violated appellant’s rights under the due process clause of the federal and state Constitutions because factors in aggravation should have been pleaded in the information and appellant was denied his right to a preliminary hearing on such factors. Defense counsel also objected to the prosecution’s proposed instruction because it did not define “planning, sophistication or professionalism.” Further, defense counsel stated he intended to present expert testimony on the issues of victim vulnerability and “planning, sophistication or professionalism.” Counsel requested a continuance “of at least a week in order to have witnesses available to put on.”
Blakely v. Washington (2004) 542 U.S. 296.
The trial court ruled it would conduct a “Blakely hearing/trial with this jury based on the state of the evidence that has been presented to this jury, and the defendant’s motion for a continuance is denied.” At the Blakely proceeding, counsel made opening and closing statements to the jury but no additional evidence was presented to the jury. On May 6, 2005, the jury reached a unanimous verdict on some of the factors in aggravation. As to all victims, viz., John Doe 1, John Doe 2, John Doe 4, John Doe 5, and John Doe 6, the jury found appellant took advantage of a position of trust. The jury also found the manner in which the crime was carried out indicates planning, sophistication or professionalism, as it related to John Doe 1, John Doe 2, John Doe 4, and John Doe 5. In addition, the jury found the victim, John Doe 5, was particularly vulnerable. The jury deadlocked on the other factors in aggravation, and the trial court declared a mistrial on those allegations.
At the sentencing hearing on September 2, 2005, the trial court found appellant ineligible for probation pursuant to section 1203.066, subdivision (a)(8). Pursuant to section 667.61, subdivision (b), the trial court imposed mandatory sentences of 15-years-to-life on counts 1, 2, 6, 9, 10, 11, 12, 18, 19, 24, 25 and 26. The court imposed these sentences consecutively for a total sentence of 180-years to life. The court reasoned: “Based on a violation of a position of trust by the defendant, the court views a consecutive sentence as just and appropriate given the defendant’s conduct and the age and relationship the defendant had with each of the victims.” On the remaining counts, viz., counts 3, 4, 5, 7, 8, 13, 14, 15, 16, 17, 20, 21, 22 and 23, the court imposed concurrent aggravated terms of eight years based on the vulnerability of the victims. Appellant filed a timely notice of appeal on September 7, 2005.
DISCUSSION
I
A. Counts 2-4 (John Doe 1) and Counts 25-26 (John Doe 6)
Appellant contends his convictions for lewd and lascivious behavior on counts 2, 3 and 4 as to John Doe 1, and counts 25 and 26 as to John Doe 6, are supported by insufficient evidence because the prosecution proved the intent element of those crimes by means of propensity evidence. Appellant avers his conviction on these counts on insufficient evidence violates the due process clause of the Fourteenth Amendment to the United States Constitution.
“ ‘To determine [the validity of a claim of insufficient] evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. [Citations.]’ [Citation.] If we determine that a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15 of the California Constitution [citation].” (People v. Memro (1995) 11 Cal.4th 786, 861.)
The prosecutor argued the elements of the contested child molestation counts as to John Doe 1 could be satisfied as follows: count 2 by appellant’s act of kissing John Doe 1’s bare buttocks while giving him a massage; count 3 by appellant’s act of touching John Doe 1’s penis with the side of his hand in order to move it away from the area appellant was massaging (John Doe 1’s right hip) while John Doe 1 lay naked on appellant’s bed; and count 4 by appellant’s act of dropping his hand onto John Doe 1’s crotch while John Doe 1 massaged appellant’s arm. The prosecutor argued the elements of the contested child molestation counts as to John Doe 6 (counts 25 and 26) could be satisfied by appellant’s acts of grabbing John Doe 6 in the area of the crotch or buttocks more than once over a two-year period.
John Doe 6 testified it happened “more than ten” times.
Appellant contends there was insufficient evidence of specific intent as to counts 2, 3 and 4 because the behavior described by the prosecutor was not “inherently sexual and there was no other non-propensity evidence that it was.” Similarly, appellant contends there was insufficient evidence of specific intent as to counts 25 and 26 because “[t]hese were quick actions and did not involve any rubbing or fondling” and because the victim John Doe 6 opined appellant was only “joking around” and “did not believe he had been molested.” Thus, appellant argues, the only evidence of specific intent as to counts 25 and 26 was propensity evidence.
Appellant’s contention is wholly without merit. “[T]he ‘gist’ of [a section 288] offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act.” (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) In other words, whether behavior falls “within or without the protective purposes of section 288” depends upon “the actor’s motivation, innocent or sexual, . . . [and] the only way to determine whether a particular touching is permitted or prohibited is by reference to the actor’s intent as inferred from all the circumstances.” (Id. at p. 450.) Indeed, it is well-established “that section 288 prohibits all forms of sexually motivated contact with an underage child.” (Id. at p. 444.) To complete the offense, “a ‘touching’ of the victim is required, and [] sexual gratification must be presently intended at the time such ‘touching’ occurs. [Citations.]” (Ibid.) “The criminal intent required for a violation of section 288 is ‘the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of’ the defendant or the victim. (§ 288, subd. (a).)
“ ‘The intent with which the act is done is manifested by the circumstances under which the act is committed. ([Pen. Code,] § 21.) Each case involving a lewd act must be decided on its own facts.’ [Citation.]” (In re Paul C. (1990) 221 Cal.App.3d 43, 54.) In determining intent, “ ‘the trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.’ [Citations.] Other relevant factors can include the defendant’s extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim’s cooperation or to avoid detection [citation].” (Martinez, supra, 11 Cal.4th at p. 445.)
Appellant’s contention is baseless when viewed against these principles. First, and contrary to appellant’s assertion, the jury was entitled to infer specific intent from the propensity evidence of uncharged conduct presented by the other victims, John Doe 7 and John Doe 3. But we need not rely on propensity evidence for sufficiency. There was plenty of evidence relevant to specific intent in the “other acts of lewd conduct admitted or charged in the case” (Martinez, supra, 11 Cal.4th at p. 445), including charges of sodomy, oral copulation, and masturbation of a child under 14-years old with respect to John Doe 2 and John Doe 5. In the light of these other offenses, the jury was entitled to reject John Doe 6’s opinion appellant grabbed John Doe 6’s buttocks and crotch in fun and to infer instead appellant did so with the specific intent required under section 288. The same could also be said regarding specific intent as to counts two, three and four—the child molestation offenses against John Doe 1. But there is more evidence of specific intent as to those counts than just the other acts of lewd conduct charged in the case.
John Doe 1 testified that when he was12-years old he joined the track club where appellant was coach. Sometimes appellant would drive John Doe 1 to and from practice if John Doe 1’s parents were unavailable. John Doe 1 stated appellant introduced John Doe 1 to his daughter, who is John Doe 1’s age, and they became friends. Appellant befriended John Doe 1’s family and went to John Doe 1’s house for dinner. John Doe 1’s parents also invited appellant out for dinner with them and on such occasions appellant would bring his daughter. John Doe 1 ran at two race meets on April 2 and 23rd, 2004, in Los Gatos and appellant picked him up after school to take him to those meets.
After each of these track meets appellant suggested John Doe 1 sleep over at his house so appellant would not have to drive John Doe 1 home late at night. John Doe 1 said he thought appellant was “really cool” and “we were friends” so he was fine with the idea of a sleepover. On the first sleepover, John Doe 1 offered to sleep on the floor, but appellant said he should sleep on the bed, saying “We’ll make it fit.” Appellant’s daughter, appellant and John Doe 1 all slept on the same bed with appellant in the middle. John Doe 1 was “kind of nervous” but trusted appellant. John Doe 1 was lying with his back to appellant and appellant put his left arm around his upper body and put his leg over John Doe 1’s legs; the front of appellant’s body was pressed up against the back of John Doe 1’s body. Appellant told John Doe 1 he loved him. John Doe 1 was scared and nervous but didn’t know what to do. John Doe 1 didn’t sleep until after appellant got up around 2 a.m. to go to work at Whole Foods, and when appellant later returned he told John Doe 1 not to tell anyone “about [his] house or that you slept over or anything.”
The track meet on April 23, 2004, also finished late and appellant again called John Doe 1’s parents to ask if John Doe 1 could sleep over. John Doe 1 testified he was “sort of hesitant” but “kind of went along with it.” This time both appellant’s daughter and stepson were present, but at bedtime they went off to sleep in the master bedroom upstairs. John Doe 1 said he became really scared and nervous when he realized he had to sleep in the small bedroom with, and on the same bed as, appellant. John Doe 1 told appellant he wanted to go home, and began crying, but all appellant said was, “Oh I thought you were more mature than this.” John Doe 1 decided to stay after appellant said “he wouldn’t do anything to me and it would be okay and stuff.” Then appellant offered to give John Doe 1 a massage because John Doe 1 had a right hip flexor injury. John Doe 1 refused at first but appellant said massage helps athletes recover from injury. At this, John Doe 1 agreed to the massage and appellant told him to take off his clothes and lie down on the bed.
John Doe 1 took off all his clothes except his boxers. Using a massage oil, appellant massaged John Doe 1’s back and legs. Appellant asked John Doe 1 to take his boxers off but John Doe 1 refused. Appellant insisted, asking John Doe 1 how he was supposed to massage him with his boxers on, so John Doe 1 took them off. Appellant then massaged John Doe 1’s bare buttocks. At one point, appellant quickly kissed John Doe 1 on the buttocks. Then appellant told John Doe 1 to turn over so he could massage his hip flexor. As John Doe 1 lay on his back, appellant moved John Doe 1’s penis aside with the back of his hand and began massaging his right hip. Appellant also massaged John Doe 1’s chest. Appellant asked John Doe 1 if he didn’t feel like he wanted to “come all over” himself. John Doe 1 got dressed again after the massage, and after watching some TV appellant called John Doe 1 to bed. John Doe 1 lay down with his back to appellant and appellant put his arm and leg around him and was hugging him really close. Next morning appellant told John Doe 1 not to tell anybody what happened the night before.
John Doe 1 also testified appellant showed him how to massage appellant’s arm; they would sit down with knees pointing towards each other and appellant would place his arm on John Doe 1’s lap. One time during such an arm massage, appellant dropped his hand onto John Doe 1’s crotch, right on top of his penis, and said he [appellant] was “going to wet himself.”
The last incident of molestation took place when John Doe 1’s parents invited appellant and his daughter to John Doe 1’s brother’s birthday party. John Doe 1 was in the hot tub with his two brothers, appellant and appellant’s daughter; John Doe 1 started to get out of the tub when all the other children were leaving but appellant said “No, stay here. I need to talk to you.” Appellant put his arm around John Doe 1’s lower back and began to rub his thigh, so John Doe 1 moved to the other side of the hot tub. Appellant asked John Doe 1 if he “wanted to do it with him and I said no. He told me, “Oh come on. It won’t make you a fag and nobody would know.” Later that night John Doe 1 told his mother everything that had happened.
From these circumstances, the jury was entitled to infer appellant’s touching of his young victim John Doe 1 was sexual, not innocent. Appellant used his position as John Doe 1’s track coach to befriend John Doe 1’s family and gain John Doe 1’s and his parents’ trust. (Martinez, supra, 11 Cal.4th at p. 445 [the jury may consider the “relationship of the parties” in determining intent].) Moreover, appellant cunningly and deceitfully encouraged the friendship between John Doe 1 and his daughter which doubtless made a sleepover seem all the more innocent in the eyes of John Doe 1’s unsuspecting parents. Appellant was deceitful too in engineering the sleepovers so that his daughter was present on the first, but not the second occasion, leaving John Doe 1 alone with appellant in his bedroom and no one to observe what took place. Appellant was also deceitful in using massage as a means to get John Doe 1 to take off all his clothes, and in telling John Doe 1 not to tell anyone what happened on the sleepovers. All these deceitful actions support an inference appellant’s actions were sexual in nature. (Ibid. [deceit used to obtain the victim’s cooperation or to avoid detection is relevant to intent].) Furthermore, appellant’s statements to John Doe 1 about whether John Doe 1 felt like “coming all over himself,” about appellant “going to wet himself” and “doing it” without anyone knowing, all support the inference appellant’s actions were sexual rather than innocent. (Ibid. [extrajudicial statements are relevant to intent]). In sum, we have no difficulty in rejecting appellant’s sufficiency-of-the-evidence claim on counts 2, 3, 4, 25 and 26.
B. Count 9 (John Doe 2)
Appellant was convicted of eleven offenses against John Doe 2—five counts of child molestation involving masturbation, four other counts of child molestation, one count of oral copulation and one count of sodomy. Appellant asserts one of the molestation counts involving masturbation, count nine, must be reversed because the prosecutor did not prove John Doe 2 slept over at appellant’s house on five rather than four occasions.
However, the dispositive factor for purposes of appellant’s sufficiency of the evidence claim is not the number of sleepovers but the number of acts of masturbation appellant engaged in with John Doe 2. (People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [where the defendant touched victim’s vagina and rubbed the area around it, both over and under the victim’s clothes, the defendant was subject to multiple convictions for the one sleep-over incident].)
John Doe 2 testified about what happened on different occasions when he slept over at appellant’s house. On the first occasion John Doe 2 intended to sleep in appellant’s stepson’s room but appellant told John Doe 2 to sleep in his room and it would be fine. John Doe 2 thought this was “kind of strange” but had no reason to question it. John Doe 2 grabbed a pillow off the bed and made an effort to sleep on the floor but appellant said it would be fine if he slept in the bed with him. John Doe 2 was wearing a T-shirt and boxers. Appellant moved over to John Doe 2’s side of the bed and started to massage his shoulders and back. John Doe 2 got scared and tense but didn’t know what to do. Appellant took or told John Doe 2 to take off his T-shirt and then got a bottle of oil, rubbed some between his hands, and began to massage John Doe 2. John Doe 2 was lying on his stomach at this point. Appellant started working his way down to John Doe 2’s buttocks and legs. Appellant reached inside John Doe 2’s boxers and began massaging the bare skin. Appellant pulled down John Doe 2’s boxers, continued massaging, then reached under John Doe 2’s hip and started fondling his penis. John Doe 2 said appellant then “flipped me over” and started to masturbate him. John Doe 2 had not had a sexual experience before and had never masturbated so he was confused and scared. Appellant masturbated John Doe 2 to climax and then John Doe 2 asked him loudly to stop. Appellant laughed as he lay on his back, masturbated himself, and ejaculated on his stomach. Next morning, John Doe 2 got dressed and went downstairs and appellant told him not to tell anyone what had happened.
Appellant invited John Doe 2 over a second time — John Doe 2 said he was scared but thought it would be different and wouldn’t happen again. When it was time to go to bed, appellant just led John Doe 2 to his room and told him to take his clothes off. Appellant started touching John Doe 2’s penis and masturbated him. Appellant then took John Doe 2’s hand and put it on appellant’s penis. Thereafter, appellant masturbated himself and ejaculated.
John Doe 2 described a third occasion. After appellant took John Doe 2 into his bedroom, appellant touched John Doe 2’s penis and masturbated him. Appellant then put his mouth on John Doe 2’s penis and gave him fellatio for about a minute. John Doe 2 asked him to stop. Appellant stopped then laughed. John Doe 2 said he stayed at appellant’s house four or five times and remembers the last time was early November because he saw “smashed pumpkins on the street” on the way home next morning. On this occasion, appellant told John Doe 2 to take his clothes off once they were in the bedroom. John Doe 2 got into bed and laid facing away from appellant. Appellant fondled John Doe 2’s penis and masturbated him. John Doe 2 told him to leave him alone so he could go to sleep. Appellant came behind him, spread his buttocks and put his penis in John Doe 2’s anus. John Doe 2 said it was excruciatingly painful; John Doe 2 begged him to stop. Appellant pulled his penis out and laughed. John Doe 2 testified that on several other occasions appellant had rubbed his penis against John Doe 2’s legs and up against his buttocks. Appellant told John Doe 2 that John Doe 2’s mother and the other coach on the team were “nosey” and not to mention he’d been at appellant’s house.
John Doe 2’s testimony evidences five acts of masturbation. Accordingly, we reject appellant’s insufficiency of the evidence claims regarding count nine.
II
A. Section 1108 Testimony
1. John Doe 3
John Doe 3’s date of birth is November 1986. John Doe 3 turned 15-years old during the fall of his freshman high school year. John Doe 3 met appellant as a freshman at high school where appellant was his track coach. John Doe 3 was also friends with appellant’s stepson. Appellant called John Doe 3 by cell phone and invited him to go to the movies with appellant and appellant’s stepson. John Doe 3’s parents gave him permission to go, so John Doe 3 took the train to Millbrae where appellant picked him up. Appellant’s stepson was not in appellant’s car, and appellant immediately explained his stepson couldn’t make it because something had come up. John Doe 3 went to the movie with appellant and nothing unusual happened. On the way back, appellant told John Doe 3 he should not mention to his parents that appellant’s stepson wasn’t with them at the movies.
Subsequently, John Doe 3 received an invitation from either appellant or appellant’s stepson to accompany them and appellant’s daughter to a soccer tournament in Fresno. John Doe 3 went with his parents’ permission. On the Saturday, after appellant’s stepson’s team had played a few games, appellant gave some of the players a massage. Later that night, appellant set up a massage table in the hotel room and gave his daughter a massage. When appellant offered to give John Doe 3 a massage too, he accepted. John Doe 3 laid face-down on the massage table with only his boxer shorts on. Appellant massaged John Doe 3’s back, thighs, and buttocks. John Doe 3 said this felt fairly normal till appellant walked around the table, looked down at him, said he had a nice body and “chomped his teeth together.” Appellant told John Doe 3 he (John Doe 3) probably had only two or three percent body fat because he was really small. Appellant said his stepson and daughter were both asleep on one of the beds at this point, and the massage was taking a long time. After the massage, John Doe 3 got into the other bed, pretty close to the edge of the bed facing away from appellant. John Doe 3 and appellant were wearing only boxers or shorts. Appellant lay on the other side of the bed, but after about ten minutes John Doe 3 said “he scooted next to me and put his leg on my side.” Appellant’s penis rubbed on John Doe 3’s buttocks, but John Doe 3 was not sure if appellant had an erection. Appellant draped his arm over John Doe 3 and said, “Let’s have some fun.” John Doe 3 knew what appellant meant, but played dumb by asking if they were going mini-golfing the next day. Appellant said, “That’s not what I mean.” John Doe 3 said, “No,” got out of the bed and slept on the floor.
Next morning, the atmosphere in the room was awkward and tense. At one point, when appellant’s stepson was at breakfast and his daughter was in the shower (or vice versa), appellant said to John Doe 3, “You look at me like I’m a monster, but you are the monster and you are just trying to make me feel guilty.” Two or three days later, appellant encountered John Doe 3 in the locker room at high school. Appellant asked John Doe 3 “if he had done anything — if he had done something wrong, what are his chances of getting with me, and he asked me like what I could have done different or what he could have done different.” Subsequently, John Doe 3 quit track because he did not want to be around appellant any more.
2. John Doe 7
John Doe 7’s date of birth is August 1986. John Doe 7 testified appellant was his soccer coach in his freshman year at high school during fall 2000. At the end of the soccer season, around December 2000 or January 2001, appellant invited John Doe 7 to go snowboarding with him at appellant’s expense. Appellant told John Doe 7 they would go up to Tahoe with appellant’s stepson, where they would meet up with appellant’s ex-wife and his daughter. John Doe 7’s parents gave their permission for him to go. After they arrived in Tahoe and checked into the hotel room, appellant told John Doe 7 that his stepson couldn’t make it up to Tahoe after all. There were two beds in the room and that night John Doe 7 slept in one and appellant slept in the other. The next day appellant rented snowboards and they went snowboarding. John Doe 7 had never snowboarded before so he fell a lot, bruised his wrist badly, and ended up pretty sore all over. After snowboarding, appellant took John Doe 7 to see his ex-wife who examined his wrist. Appellant’s daughter was with her mother. Appellant and John Doe 7 spent about 30 minutes with appellant’s daughter and ex-wife before going back to their room.
Appellant and John Doe 7 were watching a movie. John Doe 7 complained he was sore all over. Appellant offered to give him a massage, and John Doe 7 agreed. Appellant told John Doe 7 to “get more comfortable” so John Doe 7 took off his shirt, lay on his front and continued to watch the movie. Appellant started massaging John Doe 7’s back, then “he started to go a little bit lower.” John Doe 7 began to feel nervous and uncomfortable. Before reaching John Doe 7’s buttocks, appellant said, “Is this okay?” and John Doe 7 replied, “Not really.” Appellant stopped, but then said, “If I wanted to, I could have grabbed your balls.” John Doe 7 said the atmosphere “just kind of got eery [sic]” because he “didn’t know what was going on and I [didn’t] know what really to say.” After John Doe 7 showered and got into bed, appellant asked if he could come into John Doe 7’s bed. John Doe 7 refused, and nothing else happened. John Doe 7 also testified that after the massage episode appellant told him a story about “another guy” he’d brought up to Tahoe. Appellant told John Doe 7 he’d walked in on his friend while his friend was taking a shower. Appellant said he noticed his friend had an erection but appellant “didn’t mind it” and wasn’t bothered by it.
B. Discussion & Analysis
Appellant asserts the trial court improperly admitted over his objection the testimony of John Doe 3 and John Doe 7 pursuant to Evidence Code section 1108 (section 1108). Specifically, appellant contends: (1) the propensity evidence was more prejudicial than probative under Evidence Code section 352 (section 352); (2) admission of the prior act evidence deprived him of due process of law; and, (3) assuming error of a constitutional magnitude, the admission of the improper prior act evidence was not harmless beyond a reasonable doubt.
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the Supreme Court rejected a due process challenge to section 1108. The court reasoned “the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge[]” because the trial court’s discretion in that regard provides “a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial.” (Id. at 917.) In light of Falsetta, supra, we reject appellant’s contention he was denied due process by the admission of section 1108 evidence.
In the course of its analysis, the court examined federal cases treating due process claims against the equivalent federal rule of evidence and rejected the case here relied on by appellant—McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378—as “inapposite,” because it preceded the adoption of section 1108 and federal rules 413 and 414, and did not concern the validity of those provisions, “nor even involve the admission of evidence of the defendant’s other crimes[.]” (Falsetta, supra, 21 Cal.4th at pp.921-922.)
We turn to appellant’s section 352 claim. In the “careful weighing process under section 352” required before the admission of section 1108 evidence, trial courts must examine “such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Moreover, as the court recognized in Falsetta, supra, “the probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 917.) These factors apply here. The events described by John Doe 3 bear all the hallmarks of appellant’s modus operandi against his other victims—using his position as coach to befriend young boys, initiating social contacts with the youngsters outside of the coaching arena, using the friendships between his stepson and daughter and the youngsters to further his social contact with the boys, manipulating social and sleeping arrangements so the target is left alone with appellant, using massage as a means to have the boys undress and touch them, using sexual innuendo in his communications with the boys, and, when rebuffed, moving onto another victim. Thus, the probative value of John Doe 3’s and John Doe 7’s testimony was significant.
On the other hand, “the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses.” (Falsetta, supra, 21 Cal.4th at p. 917.) Here, although the uncharged offenses had not resulted in actual convictions and a prison term, their prejudicial effect was lessened by the fact that appellant’s offenses against John Doe 3 and John Doe 7 were not so egregious as his offenses of sodomy against John Doe 2 and John Doe 5, and therefore were unlikely to further inflame the jury into convicting him solely to punish him for the uncharged conduct. Nor was the jury’s attention unduly diverted into a separate determination whether defendant committed the other offenses. Appellant did not seriously dispute the events described by John Doe 3 and John Doe 7 took place—his response (and defense to many of the molestation charges) was his intentions, as well as any touching involved, were innocent. Furthermore, other factors favored admission of the section 1108 testimony — the experiences of John Doe 3 and John Doe 7 were within the same time-frame as appellant’s offenses against other victims, so the evidence was neither remote nor stale; as noted, appellant did not seriously contest the events took place; and the trial court “admitt[ed] some but not all of the [appellant’s] other sex offenses” because it excluded the proffered section 1108 testimony of another victim, David C., as remote and cumulative to the section 1108 testimony of John Doe 3 and John Doe 7. (Falsetta, supra, 21 Cal.4th at p. 917.) In sum, we conclude the trial court did not abuse its discretion in finding the balance of Falsetta factors favored the admission of John Doe 3’s and John Doe 7’s section 1108 testimony.
There being no error, we need not address appellant’s contention the alleged error was prejudicial.
III
Appellant argues the judgment must be reversed for instructional error. Specifically, appellant contends CALJIC No. 2.50.01 (Evidence of Other Sexual Offenses), CALJIC No. 2.50.1 (Evidence of Other Crimes by Defendant Proved by a Preponderance of the Evidence), and CALJIC No. 2.50.2 (Definition of Preponderance of the Evidence) together deprived him of due process of law “because they allowed him to be convicted, at least in part, on evidence proven by a preponderance of the evidence.”
The jury was instructed with CALJIC 2.50.01, in pertinent part, as follows: “If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused. However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.”
The jury was instructed pursuant to CALJIC 2.50.1 as follows: “Within the meaning of the preceding instruction[s], the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed sexual offenses other than those for which [he] is on trial. You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other sexual offenses. If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged [or any included crime] in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.”
The jury was instructed with CALJIC 2.50.2 as follows: “ ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. You should consider all of the evidence bearing upon every issue regardless of who produced it.”
Appellant’s argument is foreclosed by People v. Reliford (2003) 29 Cal.4th 1007 (Reliford). In Reliford, the Supreme Court concluded the 1999 version of CALJIC 2.50.01 (Evidence of Other Sexual Offenses) “ ‘contains language appropriate for cases involving the admission of disposition evidence [citation]. . . [and] adequately sets forth the controlling principles under section 1108.’ [Citation.]” (Reliford, supra, 29 Cal.4th at p. 1009.) In so holding, the court rejected the argument CALJIC 2.50.01 allowed the jury to convict on a standard of proof lower than beyond a reasonable doubt, stating: “Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense in 1991.” (Id. at p. 1016.) The court noted “[t]he instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty ‘beyond a reasonable doubt’ ” and “[a]ny other reading would have rendered the reference to reasonable doubt a nullity.” (Id. at p. 1016.) Here too, as in Reliford, CALJIC 2.50.01 told the jury the preponderance standard applied only to other sexual offenses, not to the charged offenses. Here too, as in Reliford, the jury was instructed via CALJIC 2.61, CALJIC 2.90 and CALJIC 10.64, “that, in all other respects, the People had the burden of proving defendant guilty ‘beyond a reasonable doubt.’ ” (Ibid.)
However, the court also added: “Although we find no constitutional error in the 1999 version of the instruction, we nonetheless recognize it could be improved. The 2002 revision to CALJIC No. 2.50.01 deletes the sentence, ‘The weight and significance of the evidence, if any, are for you to decide’ and inserts an additional cautionary statement: ‘If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.’ . . . [W]e think the new sentence is an improvement. It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses.” (Reliford, supra, 29 Cal.4th at p. 1016.) Here, the jury was instructed with CALJIC 2.50.01 containing the “new sentence” the Supreme Court opined was “an improvement” on the already legally sufficient 1999 version of CALJIC 2.50.01, which only adds to the paucity of appellant’s contention. In sum, we reject appellant’s claim of instructional error.
Appellant assert the reasoning in Reliford, supra, is “flawed,” and avers the “better rule” is stated in Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812. However, this court is “not bound by decisions of the lower federal courts, even on federal questions.” (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) On the other hand, “[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction [and] . . . the decisions of this court are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Even if we disagreed with Reliford, and we do not, we are bound by its authority.
IV
Appellant claims the trial court erred and denied him due process of law by permitting the prosecutor at the close of evidence to amend the information to expand the time frame within which appellant committed the offenses alleged in counts 18 and 19.
A. Background
The amended information alleged the offenses against John Doe 4 took place between July 1, 1998, and June 30, 1999. John Doe 4 testified he was born in July 1987, and at the time of trial he was 17-years old and in 12th Grade. John Doe 4 also testified the offenses took place during sleepovers at appellant’s house during his sixth grade. On cross-examination, however, John Doe 4 agreed the sleepovers could have been during either his sixth or seventh grade, meaning the offenses could have taken place between September 1999 and June 2000, when John Doe 4 was in seventh grade. Thereafter, at the close of the prosecution case, the trial court asked the prosecutor: “Do you have amendments?” The prosecutor was about to propose her amendments when the trial court interjected by asking if she “wish[ed] to wait until the end of the defense case?” The prosecutor said she would rather do that because “there’s more evidence that will be coming in.” Defense counsel agreed, stating: “I thought we agreed we would do it at the end of the case. That’s fine.”
Subsequently, after the defense rested but before the trial court instructed the jury, the prosecutor moved to amend counts 18 and 19 by extending by one year the period within which the offenses were alleged to have been committed. Defense counsel objected for lack of notice. The trial court overruled defense counsel’s objection and allowed the amendment, stating: “I do not believe that by expanding it from June 30, [19]99, to June 30, 2000 prejudices the defendant. I think it accurately conforms to proof.”
B. Discussion & Analysis
“Penal Code section 1009 authorizes amendment of an information at any state of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. [Citations.] However, . . . the questions of whether the prosecution should be permitted to amend the information and whether continuance in a concrete case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of showing a clear abuse of discretion. [Citations.] In accordance with these principles, it has been held to be a correct exercise of discretion to allow an amendment of an information to properly state the offense at the conclusion of the trial. [Citations.] Similarly, it has been said that where the amendment made no substantial change in the offense charged and required no additional preparation or evidence to meet the change, the denial of continuance was justified and proper. [Citations.]” (People v. George (1980) 109 Cal.App.3d 814, 818-819.)
The trial court’s decision here comports with these principles. To start with, it is clear that the amendment did not change the offense charged in the original information. Indeed, the amendment did not alter the nature of the charge at all, but merely extended forwards the time-period within which the offense was committed. (It would be a different case if, for example, the amendment had extended the time-period backwards and thereby deprived appellant the opportunity of asserting a statute of limitations defense.) Indeed, appellant acknowledges an amendment may be allowed if it involves a minor change in the pleaded date of the offense which had no effect on the defense offered.
Nonetheless, appellant asserts he was prejudiced by the amendment because it “changed the case in a way that made the entire defense irrelevant.” As we read the record, the defense strategy was to concede the most egregious offense (sodomy) and suggest the conduct underlying the child molestations charges was more likely than not innocent rather than sexual. We fail to see how such a defense strategy was prejudiced in any way by an amendment to conform to proof the time-frame of offenses alleged in counts 18 and 19. Appellant made no offer of proof in the trial court that he could present a potential defense to the charges, such as alibi, given the time-frame within which the offenses were committed was extended by one year. Appellant’s failure to even request a continuance also suggests he had no such new or viable defense to offer. Even here on appeal, all appellant offers is a bald assertion that his defense was rendered “irrelevant” but he offers no explanation of why that is so. Accordingly, we conclude the trial court did not abuse its discretion in granting the amendment.
Because we reject appellant’s contention the trial court erred by amending the information to conform to proof, we need not address his contention the same error infringed his federal constitutional rights. (People v. Avila (2006) 38 Cal.4th 491, 527, fn. 22 [“[R]ejection on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly-applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases. . . .”].)
V
Appellant asserts the trial court erred by admitting fresh-complaint evidence in the form of testimony by the mothers of several of the victims. Furthermore, appellant asserts the erroneous admission of this evidence prejudiced him under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 [erroneous admission of evidence prejudicial where it is reasonably probable a result more favorable to defendant would have occurred in the absence of error].)
A. Fresh-Complaint Evidence
Jackie W., mother of John Doe 2, testified she lived in San Mateo County most of her life but moved out of the area in July 2001. Jackie said she was surprised her son was so happy and enthusiastic about moving away from the area. In May 2004, Jackie received a call from her former husband telling her appellant had been arrested on charges of child molestation and asked her to talk to their son because John Doe 2 had spent some time at appellant’s house. When Jackie brought the matter up with John Doe 2 later in the evening, she could tell immediately by his reaction something was wrong. John Doe 2 said to his mother, “It happened to me.” Jackie asked John Doe 2 what he meant. John Doe 2 replied: “He had sex with me.” Jackie testified John Doe 2 was embarrassed at first by this admission but the more they talked the more tearful and upset he became. Subsequently, Jackie called her ex-husband back, and he reported the matter to the police.
Carole D., mother of John Doe 6, testified appellant was John Doe 6’s soccer coach. Carole became friends with appellant through this soccer connection. Carole testified that on May 7, 2004, she received a phone call from appellant, who told her he had been arrested for lewd and lascivious conduct with a minor. Appellant asked Carole to contact his friend about finding an attorney. Carole started thinking about John Doe 6 because he had spent time alone with appellant. She spoke to John Doe 6 that night and asked him if appellant had ever behaved inappropriately with him. Carole stated: “He said yes. No hesitation. He said yes.”
Asked if John Doe 6 expounded upon that any further, Carole stated: “He answered my questions only. He was reluctant to give me details. But you know, I asked him what had happened and he said nothing happened. And I said, ‘Well, did he . . . touch you or did he make you touch him?’ And he said no. And I said, you know – I was trying to get details and he just said – kept trying to calm me down and saying nothing happened. And I said, ‘Did he say something to you?’ And he said, Yeah, but, you know, I just – he said, ‘I just, you know, told him he was being stupid or I accused him of being gay and so he stopped.” The prosecutor asked Carole if John Doe 6 ever told her what it was that was inappropriate, but withdrew the question upon objection by defense counsel.
Kathleen R., mother of John Doe 1, testified she met appellant when he became her son’s track coach. Kathleen testified that one time when appellant and his daughter were at her house, she was upstairs folding laundry. She noticed it had gone quiet in the backyard where a lot of kids had been in and out of the hot-tub. When she looked out, Kathleen saw her son, John Doe 1, and appellant by themselves in the hot-tub and they appeared to be talking quietly and to have “a good secret going on.” Later, Kathleen asked her son what he and appellant were talking about in the hot-tub. Kathleen described John Doe 1’s response: “He was – said he was glad I asked and started talking for the next 45 minutes about what was going on.” Asked if she remembered how John Doe 1 started out, Kathleen responded: “He said that – that in the hot tub, [appellant] told John Doe 1 that they could do it, and I asked, you know, John Doe 1, what that meant, and he said it was about having sex and that he wouldn’t be gay if he was [sic].” Kathleen further relayed what John Doe 1 told her about the conversation in the hot tub, and also what had happened during John Doe 1’s sleepovers at appellant’s house. Kathleen and her husband later decided to call the police, which opened the investigation that led to appellant’s arrest and trial.
B. Discussion & Analysis
In (People v. Brown (1994) 8 Cal.4th 746, 754 (Brown)), our high court declined to abolish the fresh-complaint rule applicable to sexual offense cases. Rather, the high court revised “the formulation and parameters of the fresh-complaint doctrine . . . to reflect a more accurate understanding of the proper basis for the admission of such evidence.” (Brown, supra, 8 Cal.4th at p. 749.) The court noted “[t]he overwhelming body of current empirical studies . . . establishes that it is not inherently ‘natural’ for the victim to confide in someone or to disclose, immediately following commission of the offense, that he or she was sexually assaulted. [Citations.] Child victims, in particular, commonly are reluctant to report such incidents and delay in doing so, or fail to provide a full report. Frequently, the child victim is unaware of the wrongful nature of the conduct or that what has occurred is not ‘normal.’ The victim also often experiences feelings of confusion and guilt, the desire to forget the incident, and the fear of not being believed, and in many instances may remain silent as a result of intimidation by the abuser. [Citations.]” (Id. at p. 758.)
Despite this empirical evidence tending to negate “one of the historic premises of the fresh-complaint doctrine – namely, that it is ‘natural’ for the victim of a sexual offense to disclose promptly the commission of the offense in the event it did occur,” the court opined “it does not necessarily follow . . . that evidence of the circumstances surrounding a victim’s reporting or disclosure of an alleged offense should be excluded from the jury’s consideration.” (Brown, supra, 8 Cal.4th at p. 759.) Rather, the court concluded “evidence of the fact of, and the circumstances surrounding, an alleged victim’s disclosure of the offense may be admitted in a criminal trial for nonhearsay purposes under generally applicable evidentiary principles, provided the evidence meets the ordinary standard of relevance.” (Id. at p. 763 [italics added].)
The court stressed that “even if this evidence is relevant and therefore otherwise admissible under the foregoing standard, it is subject to exclusion under Evidence Code section 352 in the event the court determines that the probative value of the evidence is outweighed by the risk that the jury will consider it for impermissible hearsay purposes, or that the evidence will otherwise create a danger of undue prejudice or will mislead or confuse the jury. Indeed, in light of the narrow purpose of its admission, evidence of the victim’s report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose. Caution in this regard is particularly important because, if the details of the victim’s extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim’s statement into a hearsay assertion [citation].” (Brown, supra, 8 Cal.4th at p. 763 [italics added].)
It appears from our review of the mothers’ testimony that the prosecutor may have led the testimony of each of the mothers beyond the narrow bounds permitted under Brown, supra. In each case, Jackie, Carole and Kathleen talked not only about the circumstances surrounding each of their sons’ painful and reluctant revelations of appellant’s conduct against them, but also relayed hearsay statements describing, to some extent, the circumstances and details of the acts of molestation. (Cf. Brown, supra, 8 Cal.4th at 764 [no error in admitting hearsay testimony of child victim’s disclosures where testimony “was limited to the timing of [victim’s] complaint and the circumstances under which it was made, omitting the content of the statements and specifically any description of the molestation itself”].)
Nevertheless, we need not parse the mothers’ testimony further for compliance with Brown because we conclude any error under Brown was harmless. First, those parts of the mothers’ testimony about the circumstances and timing of how their sons came to disclose their sexual abuse was admissible and “relevant to the jury’s evaluation of the likelihood that the offense did or did not occur.” (Brown, supra, 8 Cal.4th at p. 761.) Second, and critically, to the extent the mothers recited any hearsay relating to the circumstances or details of the acts of molestation, such testimony paled in comparison to the much more graphic, detailed, and ultimately convincing, testimony from the mouths of the victims themselves. Indeed, the testimony of the victims was mutually corroborative and convincingly demonstrated appellant’s modus operandi in gaining access to and the trust of his young victims before sexually molesting them. In sum, even if the jury relied upon any of the fresh-complaint evidence for an impermissible hearsay purpose, we conclude it is not reasonably probable appellant would have obtained a more favorable result in the absence of such evidence (People v. Watson (1956) 46 Cal.2d 818, 836), and that any such evidence did not render appellant’s trial fundamentally unfair in violation of the federal Constitution’s due process clause (Estelle v. McGuire (1991) 502 U.S. 62, 73 [“the category of infractions that violate ‘fundamental fairness’ [is] very narrow[]”].)
VI
“[S]ection 654 protects against multiple punishment, not multiple conviction. [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) “[T]he statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], [therefore] its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation]” (Ibid.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]” (Ibid.)
With respect to the offenses against John Doe 2, appellant alleges count ten (masturbation) and count seventeen (molestation) were inseparable parts of one offense. Accordingly, appellant asserts the sentence on count seventeen — the lesser of the two offenses — should have been stayed pursuant to section 654.
During the incident in question, appellant began by massaging John Doe 2’s shoulders and back as John Doe 2 lay face-down on the bed. The appellant told John Doe 2 to take off his T-shirt and then began massaging his way down to John Doe 2’s buttocks and legs. Appellant reached inside John Doe 2’s boxers and began massaging the bare skin, before pulling down John Doe 2’s boxers. Appellant continued massaging John Doe 2’s buttocks, then reached under and started fondling John Doe 2’s penis. John Doe 2 said appellant then “flipped me over” and masturbated him to climax.
Appellant’s contention has merit. His acts against John Doe 2 on this occasion constituted one continuous uninterrupted fondling that escalated from fondling to masturbation. Under these circumstances, section 654 applies. (Neal v. State (1960) 55 Cal.2d 11, 19 [“If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one”].) Accordingly, the sentence on count 17 must be stayed.
VII
Appellant contends the procedure adopted by the trial court in presenting factors in aggravation to the jury violated his rights under Blakely, supra, in three respects: (1) the aggravated factors were not pleaded in the information; (2) the trial court failed to grant his request for a continuance so he could prepare expert witnesses on the questions of whether the offenses were sophisticated or the John Does particularly vulnerable; (3) the trial court failed to instruct the jury on the definition or application of the aggravated factors. On these grounds, appellant asserts the concurrent aggravated sentences of eight years on counts 3, 4, 5, 7, 8, 13, 14, 15, 16, 17, 20, 21, 22 and 23 must be reduced to six years.
Since appellant’s trial, the high court has handed down Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856 (Cunningham), in which the court concluded California’s determinate sentencing scheme violates the Sixth Amendment because it “authorizes the judge, not the jury, to find the facts permitting an upper term sentence[.]” (Cunningham, supra, 127 S.Ct. at p. 871.) Cunningham will require changes and modifications to California’s sentencing scheme. In due course, courts will need to address the constitutional dimensions of such issues as those presented here by appellant. However, we see no need to undertake that task today. We are sufficiently satisfied that the trial court’s failure to instruct the jury in any manner regarding the meaning and application of the aggravating factors at issue warrants setting aside the sentences imposed on those counts. The trial court did not even instruct the jury to apply its common understanding of, or customary meaning to, such terms as “particularly vulnerable” or “planning and sophistication.” In fact, the trial court provided no instructional guidance whatsoever. Consequently, the jurors’ only guidance in this matter was argument of counsel, which are not the equivalent of instructions by the court. (People v. Schmeck (2005) 37 Cal.4th 240, 286 [instructions to jury are “viewed as definitive and binding statements of the law” whereas arguments of counsel “generally carry less weight . . . [and] are usually billed in advance to the jury as . . . not evidence . . . [but rather] as the statements of advocates”].) We recognize, in light of appellant’s 12 consecutive sentences of 15-years to life, that there is no practical significance in appellant’s obtaining the mid-term, as opposed to the aggravated term, on the disputed concurrent counts. Consequently, and in light of Cunningham, supra, we deem the remedy most equitable to appellant and most conserving of judicial resources is to remand with instructions to the trial court to amend the abstract of judgment to reflect the mid-term sentence on the concurrent counts at issue.
DISPOSITION
The case is remanded for the trial court to amend the abstract of judgment to impose the mid-term sentence on the concurrent counts and to stay the sentence on count 17 pursuant to section 654. In all other respects, the judgment is affirmed.
We refer to counts 3, 4, 5, 7, 8, 13, 14, 15, 16, 17, 20, 21, 22 and 23.
We concur: Pollak, J., Siggins, J.