I.

INTRODUCTION

Kliever Ivan Buenrrostro appeals from a judgment of conviction after a jury

convicted him of 10 counts of committing a lewd act upon a child (Pen. Code, § 288,

subd. (a)).1 The offenses occurred between 2002 and 2013 and involved six victims. As

to each count, the jury found that Buenrrostro committed the offense against more than

one victim (§ 667.61, subds. (b), (c) & (e)). The trial court sentenced Buenrrostro to 135

years to life in prison.

On appeal, Buenrrostro contends that the trial court should have dismissed several

charges based on preaccusation delay. He argues that he was unduly prejudiced by the

delay because witnesses' memories had faded and he was unable to conduct a full

investigation, including locating witnesses. Additionally, Buenrrostro contends that the

trial court erred in concluding that the delay in charging him was justified due to the fact

that the investigation of the case was ongoing.

Buenrrostro also argues that the trial court abused its discretion by admitting

childhood photographs of each victim to show what they looked like at or near the time

of the offenses. Specifically, he contends that the photographs had no probative value

and that the prosecutor used them to evoke an emotional reaction from the jury.

Finally, Buenrrostro argues that the trial court erred by imposing separate life

sentences on counts 6 and 8 because the version of the "One Strike" law in effect at the

1 Unless otherwise specified, all subsequent statutory references are to the Penal Code.

2 time he committed those offenses permitted only one indeterminate term for offenses

committed during a single occasion. Buenrrostro contends that the trial court failed to

apply the prior version of the One Strike law and requests that we remand the matter for

the trial court to determine whether counts 6 and 8 occurred during a single occasion.

We reject Buenrrostro's claims concerning prejudicial preaccusation delay and

admission of the photographs of the victims, but agree with his contention regarding

sentencing error. We therefore affirm Buenrrostro's convictions and remand the case to

the trial court to determine whether counts 6 and 8 occurred on a single occasion and, if

necessary, resentence Buenrrostro on those counts.

II.

FACTUAL AND PROCEDURAL BACKGROUND2

A. Factual Background

1. M.V.

In 2004, Buenrrostro married Daisy Cortez. They hosted a wedding celebration at

their home. Daisy's 12-year-old cousin, M.V., attended the celebration. That night, M.V.

went to sleep in Daisy's bedroom. M.V. woke up when she felt someone touching her.

Buenrrostro had unbuttoned M.V.'s pants, lowered her pants and underwear, and was

touching her above her vagina, underneath her underwear. Buenrrostro stopped when

2 We provide only a summary of the evidence presented at trial. Our summary is intended to provide a sufficient background for consideration of Buenrrostro's claims on appeal, rather than to provide an exhaustive recitation of all of the evidence presented at trial.

3 someone knocked on the door. The next day, M.V. told her mother what had happened,

but they did not report it to the police.

2. M.Q.

Daisy's cousin, M.Q., first met Buenrrostro when she was four or five years old.

In 2002, during a visit to M.Q.'s house, Buenrrostro entered her bedroom, told her to lie

down on the floor, pulled her pants down, and rubbed his penis on her vagina.

Buenrrostro later took M.Q. to a gas station to buy candy. When they returned to M.Q.'s

house, Buenrrostro parked the car, tilted the seats back, and rubbed M.Q.'s vaginal area

over her clothing.

A few months later, M.Q. went with her family to Buenrrostro's residence. While

M.Q. was playing in a bedroom, Buenrrostro entered the room and rubbed her vaginal

area over her clothing. He did this multiple times over the course of that evening.

When M.Q. was in high school, her mother placed her in counseling. After M.Q.

revealed that she had been molested, her counselor made a report to Child Protective

Services. In 2013, the San Diego Police Department interviewed M.Q., who recounted

three incidents of molestation by Buenrrostro.

3. C.V.

In 2004, when C.V. was approximately eight or nine years old, she lived two

houses away from Buenrrostro and Daisy. C.V. and her brothers occasionally visited

Buenrrostro's residence to play video games and see his puppies. On one occasion, C.V.

was in a bedroom while her brothers were in the living room. Buenrrostro shut the

bedroom door and proceeded to kiss C.V. on her mouth, neck and chest. Buenrrostro

4 then pulled C.V.'s pants down and orally copulated her. C.V. yelled, but Buenrrostro

restrained her and told her to be quiet.

On another occasion, Buenrrostro tried to pull down C.V.'s shorts and put his

penis inside her vagina, but was unsuccessful. He also tried to have sexual intercourse

with her on other occasions. Another time, Buenrrostro tried to kiss C.V. and touch her

vagina underneath her clothing. Buenrrostro also exposed his penis to C.V. and

attempted to force her to orally copulate him multiple times.

In 2005, Buenrrostro moved to Mexico. When Buenrrostro returned to San Diego

in 2009, C.V. saw him and was scared. At that point, C.V. told her mother about the

molestations. C.V.'s mother called the police. When the police interviewed C.V., she

disclosed multiple incidents of molestation by Buenrrostro. The police submitted the

case to the district attorney's office.

4. I.C. and Y.M.

I.C. and Y.M. are cousins. Buenrrostro was a friend of Y.M.'s uncle. Around

2004, while Y.M. was watching television at her father's home, Buenrrostro entered the

room, lay down next to Y.M., and touched her vagina underneath her clothing. No one

else was in the room at that time. Y.M. told her mother what had happened. Y.M.'s

mother did not report the incident to the police.

In early 2005, Y.M.'s mother hosted a party at their home. I.C., who was

approximately six years old at the time, attended the party. During the party, Buenrrostro

inappropriately touched I.C. at least four times, including touching her butt and vagina

outside of her clothing.

5 When Buenrrostro left the party, I.C. told her mother about how Buenrrostro had

touched her. Y.M. informed I.C.'s mother that Buenrrostro had molested her a year

earlier. I.C.'s mother called the police.

I.C. and Y.M. told officers that Buenrrostro had touched them inappropriately.

During a forensic interview, I.C. explained that Buenrrostro had touched her butt and

vaginal area. In a separate forensic interview, Y.M. stated that Buenrrostro had touched

her vaginal area. The San Diego Police Department submitted a report of the incidents to

the district attorney's office.

5. A.C.

In August 2013, 11-year-old A.C. was taking a shower when the bathroom

window broke, cutting her arm and head. A.C. put on her underwear, covered herself

with a towel, and yelled for her brother to help her. Buenrrostro, who had been living in

the garage of the residence where A.C. and her family lived, entered the bathroom and

closed the door. Buenrrostro treated A.C.'s injuries and then rubbed her vagina

underneath her underwear and kissed and licked her stomach.

In November 2013, A.C. told a counselor at her school what Buenrrostro had done

to her. The counselor reported the incident to Child Protective Services. A Child

Protective Services social worker interviewed A.C. A.C. told the social worker that

Buenrrostro had touched her vagina and kissed her breast area. The social worker

referred the case to the San Diego Police Department. In January 2014, the San Diego

Police Department arrested Buenrrostro.

6 B. Procedural Background

In January 2014, the People filed a complaint charging Buenrrostro with two

counts of lewd and lascivious acts committed upon A.C. Approximately two weeks later,

the People amended the complaint to add three additional counts of lewd and lascivious

acts committed upon Y.M. and I.C. Shortly thereafter, the district attorney's office

reassessed the allegations of molestation pertaining to C.V., which it had rejected in

2010. The People then issued a separate case in February 2014, charging Buenrrostro

with sexual acts committed against C.V. Those charges were consolidated with the other,

previously filed charges against Buenrrostro.

While investigating M.Q.'s allegations of molestation, which had been reported to

the police in September 2013, the police learned that Buenrrostro had molested M.V. in

2004. M.V. confirmed that Buenrrostro had molested her. In April 2014, the district

attorney's office filed charges against Buenrrostro for the lewd and lascivious acts

committed upon M.Q. and M.V. Those charges were consolidated with the other charges

against Buenrrostro.

III.

DISCUSSION

A. Preaccusation delay

Buenrrostro contends that the trial court should have granted his motion to dismiss

the counts pertaining to I.C., Y.M., and C.V. on the basis that the preaccusation delay

was unjustified and prejudicial, denying him due process and a fair trial under the state

7 and federal Constitutions.3 According to Buenrrostro, the delay prejudiced him because

witnesses' memories had faded and he was unable to locate witnesses. Additionally,

Buenrrostro argues that the trial court erred in concluding that the delay in charging was

justified by the fact that the investigation was ongoing because nothing had changed

between the time the district attorney's office originally declined to prosecute the charges

and the time it reexamined the charges in 2014.

1. Applicable Law

"Delay in prosecution that occurs before the accused is arrested or the complaint is

filed may constitute a denial of the right to a fair trial and to due process of law under the

state and federal Constitutions. A defendant seeking to dismiss a charge on this ground

must demonstrate prejudice arising from the delay. The prosecution may offer

justification for the delay, and the court considering a motion to dismiss balances the

harm to the defendant against the justification for the delay. [Citations.] In addition, a

claim based upon the federal Constitution requires a showing that the delay was

undertaken to gain a tactical advantage over the defendant." (People v. Catlin (2001) 26

Cal.4th 81, 107 (Catlin).)

"Under this balancing test, the trial court undertakes a delicate weighing of

interests to determine whether preaccusation delay has deprived the defendant of due

process: '[A] minimal showing of prejudice may require dismissal if the proffered

3 Prior to trial, Buenrrostro moved to dismiss all charges against him based on preaccusation delay. On appeal, Buenrrostro restricts his argument to the charges on which he was convicted pertaining to I.C. (count 3), Y.M. (count 5), and C.V. (counts 6 and 8). Accordingly, we limit our discussion to the challenged counts.

8 justification for delay is insubstantial. By the same token, the more reasonable the delay,

the more prejudice the defense would have to show to require dismissal.' " (People v.

New (2008) 163 Cal.App.4th 442, 459-460 (New).)

We review the trial court's ruling on a motion to dismiss based on preaccusation

delay for abuse of discretion, deferring to any underlying factual findings made by the

court so long as they are supported by substantial evidence. (People v. Cowan (2010) 50

Cal.4th 401, 431 (Cowan).) Whether a delay was prejudicial to the defendant is a

question of fact. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.)

Prejudice may not be presumed. (People v. Abel (2012) 53 Cal.4th 891, 908-909; People

v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)

2. Additional background regarding Buenrrostro's motion to dismiss

In March 2005, I.C. and Y.M. told officers that Buenrrostro had molested them.

The police detained Buenrrostro pending further investigation of the matter. The police

subsequently investigated I.C.'s and Y.M.'s allegations, including conducting forensic

interviews of the victims and interviewing witnesses, and submitted the cases to the

district attorney's office. In late March 2005, the district attorney's office declined to

prosecute the cases.

In 2009, when C.V. was 13 years old, the police investigated her claims that

Buenrrostro had molested her in 2004. After interviewing Buenrrostro and conducting a

forensic interview of C.V., the police submitted the case to the district attorney's office.

In February 2010, the district attorney's office declined to prosecute the matter.

9 In 2014, the police arrested Buenrrostro for crimes against A.C. When the district

attorney's office reviewed A.C.'s case, it reexamined the cases pertaining to I.C., Y.M.,

and C.V. and decided to charge Buenrrostro with crimes against those victims as well as

A.C.

Prior to trial, Buenrrostro moved to dismiss the charges against him pertaining to

I.C., Y.M., and C.V. According to Buenrrostro, he could not remember possible

witnesses who may have been present during the alleged crimes and many defense

witnesses were no longer available to testify because they had died, could not be located,

or had been deported.

Buenrrostro also argued that crucial evidence had been lost or destroyed as a result

of a "substandard law enforcement investigation." According to Buenrrostro, this

evidence included DNA that could have been collected through medical examinations

and witnesses who could have been located if the police had interviewed neighbors and

canvassed the surrounding area.

Buenrrostro further argued that the prosecution did not have a justification for the

delay. Specifically, he contended that the police had stopped investigating the case, and

that they had not located additional witnesses or found new evidence that had been

previously unavailable.

The trial court denied Buenrrostro's motion without prejudice so that he could

raise it again after the court heard the evidence at trial. After the close of evidence,

Buenrrostro renewed his motion. Buenrrostro again argued that the delay in charging

him had hindered his defense because he was unable to locate witnesses and favorable

10 evidence. Defense counsel argued, "[i]f there wasn't the several years' delay, I bet our

investigator would have found people that are non-family that were there to maybe

corroborate statements that were helpful to [Buenrrostro]."

The trial court denied Buenrrostro's motion, concluding that his claim of prejudice

was unsubstantiated because the evidence presented at trial had not revealed any potential

defense witnesses and Buenrrostro had not identified any lost witnesses nor described any

efforts to locate such witnesses. The court further concluded that the prosecution had not

caused the delay and that "[t]he case has remained under investigation."

3. The trial court acted within its discretion in denying Buenrrostro's motion to

dismiss

a. Prejudice

Buenrrostro argues that the preaccusation delay prejudiced him because witnesses'

memories had faded and the delay deprived him of the ability to locate witnesses who

could provide testimony that would impeach the victims and otherwise exculpate him.

" '[P]rejudice [for preaccusation delay claims] may be shown by loss of material

witnesses due to lapse of time [citation] or loss of evidence because of fading memory

attributable to the delay.' " (Catlin, supra, 26 Cal.4th at p. 107.) However, "speculation

about prejudice because potential witnesses' memories have failed or because witnesses

and evidence are now unavailable is insufficient to discharge defendant's burden.

[Citation.] A particular factual context must be established in which a specific claim of

prejudice can be evaluated." (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937,

946, italics added.)

11 Buenrrostro's prejudice claim is speculative. He never provided the trial court

with specific information as to witnesses who were unavailable or of efforts to locate

witnesses. Further, he did not provide any details or a factual context for the purported

exculpatory evidence that these witnesses could have provided. Instead, defense counsel

merely argued, "[i]f there wasn't the several years' delay, I bet our investigator would

have found people that are non-family that were there to maybe corroborate statements

that were helpful to [him]." Buenrrostro did not elaborate concerning any statements that

were helpful to him. Counsel's "bet" that he could have found helpful witnesses if the

charges had been brought at an earlier date does not constitute a sufficient showing of

prejudice. (People v. Conrad (2006) 145 Cal.App.4th 1175, 1184 [defendant's claim that

a witness "could have" testified to certain facts was speculation and insufficient to

establish prejudice].)

Buenrrostro argued that he could not make specific representations about potential

witnesses and what they would say because the preaccusation delay prevented him from

ascertaining the identities of those witnesses. However, Buenrrostro was aware of I.C.'s

and Y.M.'s accusations near the time the crimes took place and thus, he had an incentive

to record exculpatory information at that time. I.C.'s mother confronted Buenrrostro on

the night he inappropriately touched I.C. That same night, I.C. told the police about what

had occurred and Y.M. reported that Buenrrostro had inappropriately touched her a year

earlier. Buenrrostro knew of these allegations against him because the police detained

him at the time. Under these circumstances, Buenrrostro cannot persuasively claim that

the preaccusation delay prejudiced him because he could have recorded information

12 about any potential exculpatory witnesses and evidence at or near the time the

accusations were made. (Cowan, supra, 50 Cal.4th at p. 432 [concluding that defendant

did not suffer prejudice because he knew he was a suspect and "had an incentive to

record any exculpatory information he had regarding his whereabouts, the property, or

the identity of alibi witnesses."].)

Additionally, there was no evidence presented at trial suggesting that there were

any witnesses who could have provided exonerating evidence. It is undisputed that

Buenrrostro was present at the locations and times of the acts charged. The crimes

occurred in private, outside the presence of others. Thus, it is unlikely that any witnesses

could have provided evidence demonstrating that the crimes did not in fact occur. (See

People v. Cordova (2015) 62 Cal.4th 104, 120 [claimed prejudice is speculative when

"[n]o reason exists to believe witnesses would have supplied exonerating, rather than

incriminating, evidence, or any evidence at all."].)

Buenrrostro also argues that he was prejudiced because the victims' memories had

faded over the years. Specifically, he contends that I.C. had told a variety of different

stories about what Buenrrostro had done to her and how many times it happened, Y.M.

could not recall details about the incident, and C.V. was uncertain about the exact time

period when the events occurred. According to Buenrrostro, he could have more fully

explored conflicts in these victims' testimony if he had been able to conduct a

contemporaneous investigation.

I.C. testified to specific details about what Buenrrostro had done to her and where

the incidents took place. She underwent a recorded forensic interview two days after

13 Buenrrostro's crimes against her in March 2005. Although there were some discrepancies

between I.C.'s statements near the time of the crimes and her trial testimony, Buenrrostro

has not identified how a contemporaneous investigation would have assisted him in

explaining the discrepancies. He merely argues that a contemporaneous investigation

would have aided him in "providing information about who [he] was years earlier."

However, as previously noted, Buenrrostro was aware of I.C.'s accusations against him in

2005 and thus had an incentive to record any exculpatory information.

At trial, Y.M. could not recall certain details about Buenrrostro's crimes against

her, particularly the dates when the crimes occurred. She could not remember the same

details in her forensic interview that took place approximately one year after the crimes.

Thus, even if the prosecution would have charged Buenrrostro in 2005 with the crimes he

committed against Y.M., he would not have had any more specific information

concerning the dates of crimes at that time.

The same is true with respect to C.V. Although C.V. could not recall precise

details about the dates when the crimes occurred, she testified that the first incident

occurred when she was eight or nine years old, which was between August 2003 and

August 2005, and that all of the crimes took place before Buenrrostro moved to Mexico

in 2005. C.V. did not report the abuse until 2009, and had trouble remembering details

about dates during her 2009 forensic interview. As the prosecution's expert explained,

children reporting sexual abuse often delay reporting and are unable to recall specific

dates or to report incidents in a sequential manner. Therefore, even if the prosecution had

moved forward with the case in 2009, C.V. would not have been able to recall the exact

14 time period during which the molestations occurred. Buenrrostro thus has not shown that

he was prejudiced by the delay in charging the offenses against C.V. due to her inability

to recall details of the offenses.

Buenrrostro next contends that the preaccusation delay prevented him from

"conduct[ing] contemporaneous interviews to support his Stoll defense." In People v.

Stoll (1989) 49 Cal.3d 1136, the California Supreme Court explained that Evidence Code

section 1102 "allows an accused to present expert opinion testimony . . . to indicate his

nondisposition to commit a charged sex offense." (Id. at p. 1153.) At trial, Buenrrostro

presented several character witnesses who testified that they had never seen him touch

children inappropriately. He also presented expert testimony from a psychologist who

opined that Buenrrostro was not sexually deviant or a pedophile and that he did not

demonstrate the red flags typically found in cases of pedophilia or sexual deviance.

Buenrrostro has offered nothing more than a conclusory claim that the preaccusation

delay hampered his Stoll defense. He does not explain how additional witnesses could

have supplemented the expert opinion's testimony concerning Buenrrostro's lack of

predisposition to commit the charged sex offenses. Accordingly, he has failed to

establish prejudice in this regard.

15 b. Justification

Even if Buenrrostro had made a showing of prejudice, the trial court did not abuse

its discretion by impliedly concluding that the prosecution's justification for the delay

outweighed any prejudice.

In an attempt to demonstrate that the prosecution was not justified in charging him

with crimes committed against I.C., Y.M., and C.V., Buenrrostro asserts that the police

neither continued to investigate those crimes nor discovered new evidence between the

time the district attorney's office originally declined to prosecute the matters and when he

was charged in 2014. Buenrrostro asserts that the prosecution charged him with the

earlier crimes only as a result of its investigation of A.C.'s case. He argues that this is not

sufficient to support the trial court's conclusion that there was an ongoing investigation.

Buenrrostro's arguments are not persuasive. In Catlin, our Supreme Court

explained:

" 'Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. . . . Investigative delay is fundamentally unlike delay undertaken by the government solely to gain tactical advantage over an accused. . . . A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.' " (Catlin, supra, 26 Cal.4th at p. 109.)

In that case, the court concluded that filing murder charges in 1985 alleging that

the defendant had murdered his wife in 1976 by poisoning her with paraquat did not

violate due process. The court reasoned that the evidence available prior to 1984 made it

16 "extremely difficult or impossible to make out a case against defendant at or near the time

of the murder," but that "[b]y the time defendant was charged, of course, additional

evidence of his guilt had emerged—particularly his involvement in the paraquat

poisoning of two more persons." (Catlin, supra, 26 Cal.4th at p. 109, italics added.)

Contrary to Buenrrostro's argument, something significant did occur between the

time the district attorney's office originally reviewed the allegations concerning I.C.,

Y.M., and C.V. and the time it charged Buenrrostro with those crimes in 2014.

Specifically, another victim, A.C., reported that Buenrrostro molested her. This fact

constitutes new evidence that corroborates the other charges. (See New, supra, 163

Cal.App.4th at p. 465 [delay in charging defendant with the murder of his first wife was

justified because new evidence had emerged to establish that defendant shot her, namely,

defendant's third wife also died in their home from a gunshot wound]; Catlin, supra, 26

Cal.4th at p. 109.)

Evidence Code section 1108 permits courts to admit propensity evidence in sex

offense cases. " ' "This includes consideration of the other sexual offenses as evidence of

the defendant's disposition to commit such crimes, and for its bearing on the probability

or improbability that the defendant has been falsely or mistakenly accused of such an

offense." ' " (People v. Falsetta (1999) 21 Cal.4th 903, 912.) " 'The Legislature has

determined the need for this evidence is "critical" given the serious and secretive nature

of sex crimes and the often resulting credibility contest at trial.' " (Id. at p. 911.)

Accordingly, evidence that Buenrrostro committed sex offenses against A.C. could be

used to establish that he committed sex offenses against I.C., Y.M., and C.V., making

17 those cases stronger than they were when the district attorney's office originally assessed

them.

The police were not actively seeking new witnesses or evidence, but they obtained

new evidence when A.C. reported Buenrrostro's crimes against her. When the

prosecution waits to bring charges until it has sufficient evidence to support those

charges, "[t]he delay [is] investigative delay, nothing else." (People v. Nelson, supra, 43

Cal.4th at p. 1256 [twenty-six-year delay in charging defendant with murder was justified

because the evidence was insufficient to charge him until forensic technology and

funding for cold case investigations became available to identify defendant as a suspect

and establish his guilt through a DNA comparison analysis].)

"Although under California law a defendant need not show that the preaccusation

delay was undertaken to give the prosecution a tactical advantage, the absence of such

evidence is nevertheless relevant in the weighing of the prejudice to the defendant against

the justification for the delay." (New, supra, 163 Cal.App.4th at p. 466.) In this case,

there was no indication that the delay occurred because the prosecution was attempting to

gain a tactical advantage. Instead, A.C.'s case caused the prosecution to reexamine prior

cases involving Buenrrostro. With A.C.'s case, the prosecution had additional evidence

that was relevant to the older crimes and, at that point, it chose to charge Buenrrostro

with the older crimes, as well as the crimes committed against A.C. "A court should not

second-guess the prosecution's decision regarding whether sufficient evidence exists to

warrant bringing charges." (Nelson, supra, 43 Cal.4th at p. 1256.) Preaccusation delay is

justified where, as here, the prosecution discovers new evidence that is relevant to older

18 uncharged crimes and that strengthens the evidence supporting prosecution of those

crimes. (See Catlin, supra, 26 Cal.4th at p. 109; New, supra, 163 Cal.App.4th at p. 465.)

The trial court did not abuse its discretion by impliedly concluding that the

justification for the delay in charging Buenrrostro with the crimes against I.C., Y.M., and

C.V. outweighed any prejudice that Buenrrostro may have suffered.

B. The trial court did not abuse its discretion by admitting photographs of the victims as

they appeared at the time of Buenrrostro's crimes against them

Buenrrostro challenges the trial court's admission of photographs of the victims

depicting them at the ages they were at the time of the crimes. Buenrrostro contends that

the trial court abused its discretion under Evidence Code section 352 because the

photographs had no probative value and were unduly prejudicial. He further contends

that he was denied due process and a fair trial because the photographs improperly

evoked sympathy and an emotional reaction from the jury.

1. Additional Background

Prior to trial, Buenrrostro objected under Evidence Code section 352 to the

prosecution's proffer of photographs of the victims as they appeared at the time of

Buenrrostro's crimes against them. The prosecutor argued that the photographs were

relevant to show the victims' size, appearance, and vulnerability at the time the crimes

occurred. The court reviewed the photographs and allowed the prosecution to admit one

photograph of each victim.

The prosecutor showed the photographs to the jury during her opening statement.

While doing so, the prosecutor described the victims as "a group of sweet, innocent little

19 girls" who were "the objects of [Buenrrostro's] sexually perverse desires." The

prosecutor showed the photographs again during the testimony of each victim or a family

member. At the close of evidence, Buenrrostro renewed his objection. The trial court

admitted the photographs, concluding that their probative value exceeded their prejudicial

effect.

During closing argument, the prosecutor stated that she had introduced the

photographs to "demonstrate how small and impressionable and delicate these girls were

when they were molested."

2. Relevant law

Evidence Code section 352 provides: "The court in its discretion may exclude

evidence if its probative value is substantially outweighed by the probability that its

admission will (a) necessitate undue consumption of time or (b) create substantial danger

of undue prejudice, of confusing the issues, or of misleading the jury." "[T]he test for

prejudice under Evidence Code section 352 is not whether the evidence in question

undermines the defense or helps demonstrate guilt, but is whether the evidence inflames

the jurors' emotions, motivating them to use the information, not to evaluate logically the

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

emotional reaction." (People v. Valdez (2012) 55 Cal.4th 82, 145.) "Admission of

photographs of the victims is within the sound discretion of the trial court, and that

discretion will not be disturbed unless it is manifest that the probative value of the

evidence is outweighed by its prejudicial effect." (People v. Bean (1988) 46 Cal.3d 919,

943.)

20 3. Application

The victims' photographs were relevant to aid the jurors in judging the victims'

sizes, ages, and vulnerability at the time of the crimes. The victims had matured

significantly by the time they testified because the crimes, other than those against A.C.,

had occurred more than a decade prior to trial. M.V. was 12 years old at the time of the

crimes against her and 22 years old at trial. Her photograph depicted her at the age of

approximately 13. M.Q. was around five years old at the time of the crimes against her

and 17 years old at the time of trial. Her photograph depicted her at the age of five.

Y.M. and I.C. were five and six years old, respectively, at the time of the crimes, and 16

and 17 years old at trial. Their photographs depicted them at five and seven years old.

C.V. was eight or nine years old at the time of the crimes and 19 years old at trial. Her

photograph depicted her at eight or nine years old. There is a significant difference in

size, age, and vulnerability of young children compared to the teenagers and young adults

who testified before the jury. The photographs were thus relevant to aid the jury in

evaluating the victims at the time of the crimes.

The photographs were also relevant to assist the jury in assessing the victims'

credibility, which was particularly important in a case such as this one because of "the

secretive nature of sex crimes and the often resulting credibility contest at trial."

(Falsetta, supra, 21 Cal.4th at p. 911.) As the prosecution's expert explained, children

reporting sexual abuse are often unable to provide details about the crimes and can appear

inconsistent because "they don't necessarily identify things that adults would." The

photographs aptly reminded the jury to evaluate the victims' comprehension of events,

21 recall, and ability to relay details as children rather than as the young adults who

appeared at trial.

Although there was some risk that the childhood photographs could generate

sympathy for the victims, the trial court could reasonably conclude that any resulting

prejudice was slight compared to the probative value of the evidence. "The possibility

that [photographic evidence] generate[s] sympathy for the victims is not enough, by

itself, to compel its exclusion if [the photographs are] otherwise relevant." (People v.

DeSantis (1992) 2 Cal.4th 1198, 1230 [admission of a photograph showing a murder and

assault victim on vacation was not error despite defendant's contention that it generated

sympathy for the victims because the photograph was relevant]; see also Cowan, supra,

Cal.4th at p. 475 [admission of post-mortem photographs of frail, elderly murder victims

was not an abuse of discretion because the evidence was relevant and sympathy for the

victim is not sufficient to require exclusion].) In this case, the prosecution showed only

one photograph of each victim, and the court instructed the jury that it must not let

sympathy influence its decision (CALCRIM No. 200). Further, Buenrrostro has not

identified anything uniquely inflammatory about the photographs such that they would

have motivated the jury to use the evidence for an improper purpose and disregard the

court's instruction to not let sympathy play into the jury's decision. The trial court did not

abuse its discretion in concluding that the photographs of the victims as children were

admissible under Evidence Code section 352.

22 4. Admission of the evidence as a violation of Buenrrostro's rights to due process

and a fair trial

Buenrrostro contends that admission of the photographs violated his right to due

process and rendered his trial fundamentally unfair. Because we have concluded that the

evidence was properly admitted, we reject Buenrrostro's contention that the admission of

this evidence violated his rights to due process of law and a fair trial.

To the extent Buenrrostro argues that the prosecutor committed misconduct by

using the photographs to evoke an improper emotional reaction in the jury while

describing the victims as "sweet, innocent little girls" who were "the objects of

[Buenrrostro's] sexually perverse desires," we conclude that Buenrrostro forfeited the

argument by failing to raise this objection at trial. (People v. Earp (1999)20 Cal.4th 826,

858 [" 'To preserve for appeal a claim of prosecutorial misconduct, the defense must

make a timely objection at trial and request an admonition.' "].)

C. Remand is required for the trial court to determine whether counts 6 and 8 were

committed on a "single occasion" under former section 667.61, subdivision (g)

Buenrrostro contends that the trial court misunderstood its sentencing discretion

when it sentenced him to consecutive terms of 15 years to life on his crimes against C.V.

(counts 6 and 8). Specifically, he argues that the trial court erred in failing to apply the

version of section 667.61, subdivision (g), that was in effect in 2004 and 2005, the time

period during which he committed the charged offenses. Buenrrostro further contends

that the trial court could not have imposed One Strike law sentences on both counts 6 and

8 under former section 667.61, subdivision (g), because the offenses were committed on a

23 "single occasion" as that term was interpreted in People v. Jones (2001) 25 Cal.4th 98,

107 (Jones).

The People concede that because counts 6 and 8 arguably were committed on a

single occasion, former section 667.61, subdivision (g), may have authorized only one

indeterminate term of 15 years to life. The parties agree that we should remand the case

to the trial court to determine whether counts 6 and 8 occurred on a single occasion.

1. Additional Background

Counts 6 and 8 alleged that Buenrrostro committed lewd and lascivious acts by

putting his mouth on C.V.'s vagina and by kissing her. The second amended consolidated

information distinguished the counts pertaining to C.V. by stating that count 6 was for

"mouth to vagina - first occasion" and count 8 was for "kiss - first occasion."

At trial, C.V. testified that on the first occasion when Buenrrostro inappropriately

touched her, she was eight or nine years old, which was between August 2003 and

August 2005. On that occasion, Buenrrostro entered a bedroom, shut the door, and

proceeded to kiss C.V. on her mouth, neck, and chest. Buenrrostro then pulled C.V.'s

pants down and orally copulated her.

The jury convicted Buenrrostro on counts 6 and 8 of committing lewd and

lascivious conduct against C.V. The jury also convicted Buenrrostro on eight other

counts of lewd and lascivious conduct pertaining to his crimes against A.C., I.C., Y.M.,

M.Q. and M.V. On each count, the jury found that Buenrrostro had committed lewd and

lascivious conduct against more than victim.

24 At sentencing, Buenrrostro requested that the trial court impose concurrent

sentences, to the extent possible. The trial court stated that it had no "persuasive

authority that would allow [it] to sentence concurrent. It is 15 to life terms." The trial

court went on to state that in light of the multiple victim findings, it was required to

impose terms of 15 years to life, running consecutively. The trial court then sentenced

Buenrrostro to 10 terms of 15 years to life. Although the trial court had stated it did not

have authority to impose concurrent sentences, it imposed concurrent sentences on counts

1 and 2 and ran the remaining sentences consecutively (counts 3, 5, 6, 8, 10-13). In

imposing the sentences, the court did not reference the applicability of former section

667.61, subdivision (g).

2. Governing law

At the time Buenrrostro committed counts 6 and 8, the One Strike law provided

that the applicable prison term "shall be imposed on the defendant once for any offense or

offenses committed against a single victim during a single occasion." (§ 667.61, former

subd. (g).) Our Supreme Court interpreted the phrase "during a single occasion" in that

version of the One Strike law to mean that the offenses "were committed in close

temporal and spatial proximity." (Jones, supra, 25 Cal.4th at p. 107.) Applying that

definition, the Supreme Court indicated that "a sequence of sexual assaults by defendant

against one victim that occurred during an uninterrupted time frame and in a single

location" should be determined to have occurred on a single occasion within the meaning

of the statute. (Id. at pp. 101, 107 [sexual assaults were committed on a single occasion

when the defendant performed numerous sex acts on the victim in a car over the span of

25 at least one and a half hours].) Former section 667.61 did not mandate that sentences

imposed under that section be served consecutively. (People v. Rodriguez (2005) 130

Cal.App.4th 1257, 1262.)

In 2006, the Legislature superseded the standard set forth in Jones by amending

the One Strike law to delete section 667.61, subdivision (g) as it formerly appeared and to

insert subdivision (i), which in relevant part provides that for the applicable offenses, "the

court shall impose a consecutive sentence for each offense that results in a conviction

under this section if the crimes . . . involve the same victim on separate occasions as

defined in subdivision (d) of Section 667.6." (§ 667.61, subd. (i); Stats. 2006, ch. 337,

§ 33.) In turn, section 667.6, subdivision (d), defines "separate occasions" as follows:

"In determining whether crimes against a single victim were committed on separate

occasions under this subdivision, the court shall consider whether, between the

commission of one sex crime and another, the defendant had a reasonable opportunity to

reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.

Neither the duration of time between crimes, nor whether or not the defendant lost or

abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the

issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd.

(d).)

3. Application

It appears that the trial court did not fully exercise its sentencing discretion. The

trial court made no reference to former section 667.61, subdivision (g), or to the standard

for determining whether multiple sex offenses occurred on a "single occasion" for

26 purposes of that statute, as established in Jones. Despite the evidence suggesting that

counts 6 and 8 may have occurred on a single occasion, the court did not engage in an

analysis of whether those crimes occurred in close spatial or temporal proximity. Instead,

the court concluded that it was required to impose consecutive terms of 15 years to life

and imposed those terms on counts 6 and 8.

In the time frame between 2003 and 2005 when Buenrrostro committed lewd and

lascivious conduct on C.V., the Legislature had not adopted section 667.61, subdivision

(i). The law in effect at that time, former section 667.61, subdivision (g), provided that

only one indeterminate, one strike term could be imposed for any offenses committed

against a single victim on a single occasion. For any other offense committed during the

single occasion, former section 667.61, subdivision (g), required that "[t]erms . . . be

imposed as authorized under any other law."

Accordingly, on remand, the trial court shall determine whether counts 6 and 8

were committed on a "single occasion" under former section 667.61, subdivision (g),

such that Buenrrostro may not receive a One Strike law sentence on both counts. If the

court concludes that the offenses were committed on a "single occasion" under former

section 667.61, subdivision (g), the court shall impose a single One Strike law sentence

on one of the two counts and impose a term "authorized elsewhere in the Penal Code" on

the other count. (People v. Stewart (2004) 119 Cal.App.4th 163, 175.)

27

IV.

DISPOSITION

The convictions are affirmed. The judgment is reversed and the matter is

remanded for resentencing in accordance with part III.C, ante.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

28