P. v. Segade

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Filed 12/28/06 P. v. Segade CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH CHRISTOPHER SEGADE,
Defendant and Appellant.
E039208
(Super.Ct.No. RIF 119978)
OPINION
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach,
Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr. and Lilia E.
Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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1. Introduction
Defendant Joseph Christopher Segade appeals from a judgment convicting him of
multiple sex crimes against two child victims. The jury found defendant guilty of
committing a lewd and lascivious act upon Jane Doe, a child under 14 years of age (count
1).1 The jury also found defendant guilty of the following eight sex crimes involving a
second victim, John Doe: four counts of lewd and lascivious conduct upon a child under
14 years of age (counts 2, 3, 4, and 5);2 two counts of forcible sodomy (counts 6 and 8);3
and two counts of oral copulation on a child under 18 years of age (counts 15 and 16).4
On appeal, defendant raises the following claims: the crime charged in count 1
was prosecuted after the expiration of the statute of limitations; the trial court erred in
failing to instruct the jury on the elements required for the tolling provision in former
section 803, subdivision (g); the court erred in instructing the jury with CALJIC No.
10.60 on the requirement of corroboration; there was insufficient evidence that the crime
charged in count 1 was committed within the statute of limitations; the court erred in
1 Penal Code section 288, subdivision (a). All further statutory references will be
to the Penal Code unless otherwise stated.
2 Section 288, subdivision (a).
3 Section 286, subdivision (c)(2).
4 Section 288a, subdivision (b)(1). The district attorney amended the pleadings a
number of times. The operative pleading, the fourth amended information (No. RIF
119978), alleged 15 counts, numbered 1 through 16, omitting 7. In addition to the counts
mentioned above, the information alleged that defendant participated in six other acts of
oral copulation in violation of section 288a, subdivision (b)(1), during the period between
September 1993 and September 1996 (counts 9, 10, 11, 12, 13, and 14).

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refusing to instruct the jury with CALJIC No. 10.47 on the lesser included offense of
sodomy upon a child under 18; the court also erred in refusing to give CALJIC No. 10.65
on consent; the court erred in admitting evidence of defendant’s prior sex acts under
Evidence Code section 1108; and the court erred in imposing the upper term in count 6 in
violation of Blakely v. Washington (2004) 542 U.S. 296.
For the reasons provided below, we reject defendant’s arguments and affirm the
judgment.
2. Factual and Procedural History
A. John Doe
John Doe lived with defendant, his biological uncle, who was six years older.
Defendant’s parents raised John. Defendant was like an older brother to John.
When John was five years old, in 1983 or 1984, defendant showed him some
pornographic magazines in defendant’s bedroom and fondled John’s penis over his
clothes. John did not know what to think about defendant’s behavior and did not report
the incident to anyone. A couple days later, defendant repeated the same behavior.
Defendant then began touching John’s penis over his clothes regularly for a couple of
years. At some point during these incidents, defendant also had John touch his penis.
When John was about eight years old, in 1986 or 1987, the touching progressed to
masturbation. Defendant had John masturbate him, which occurred about twice a week.
Defendant also masturbated John, but not often. Around this time, defendant also had
John orally copulate him. On about two occasions, defendant orally copulated John.

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The sex acts continued when John was nine and defendant was 15. On one
occasion, after fondling each other in the bedroom, defendant asked John to put on his
shorts and go to the backyard pool. Defendant orally copulated John under water to show
him how he wanted it done to him. He then had John orally copulate him under water.
The two then returned to the house and went to the bathroom. On the bathroom floor,
defendant and John orally copulated each other at the same time. The two stopped when
defendant’s father saw them and started banging on the door. Afterwards, defendant told
John not to say anything because defendant would get into trouble. The sex acts stopped
for a couple of years.
They resumed, however, in 1991 or 1992, when John was 12 and defendant was
18. Defendant had John perform oral sex on him a number of times and John complied
because he was afraid of defendant. John also went along with the sex acts because
defendant threatened to tell the family that he was gay.
The oral copulations continued in 1993 and 1994, but less frequently. John began
resisting defendant’s advances when he was about 14 or 15 years old. At the time, they
were living in an apartment in Victorville.
When John was 15 and defendant was 21, he and defendant went to the bathroom
where they engaged in mutual touching and oral copulation. Defendant then asked if he
could penetrate John anally and John acquiesced because defendant was verbally abusive
when John refused and John did not want to fight with defendant. John was afraid of
defendant. When defendant penetrated John’s anus, John experienced considerable pain
and asked defendant to stop. Although John was crying and in pain, defendant initially

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refused to stop. He held John’s waist with his hands, using force to keep John in place.
John finally was able to push defendant away. Someone had come to the door and John
ran to the shower. As he started taking a shower, he noticed a significant amount of
blood flowing from his anus. John had to use tissue paper for a couple of days to stop the
bleeding. Defendant told John not to say anything about the incident.
In 1995, while still living at the Victorville apartment, defendant had John orally
copulate him at least twice a week. Defendant was married at the time and he and his
wife shared a bedroom at the apartment. According to defendant’s wife, defendant
constantly yelled at and belittled John, who was shy, quiet, small, and effeminate.
After living in an apartment in Riverside, the family moved into a house in the
same area in 1996. Defendant’s wife recalled an incident in Riverside when defendant
straddled John on the bed and began punching him repeatedly on the upper body. John
was yelling for defendant to stop.
After they had moved into the house, there was another incident involving anal
sex. After orally copulating each other, defendant had John get on his knees by the side
of the bed. Defendant then took spit and rubbed John’s anal area. Defendant penetrated
John’s anus, causing John pain.
In 1997, when John refused to copulate defendant orally, defendant became
violent with John later that day. Defendant followed John into his bedroom, pushed him
on the bed, started choking him. Although defendant’s wife came into the room and told
defendant to stop, defendant continued his attack by hitting John on the face with his
closed fist. After this incident, John moved out of the house and stayed with an aunt.

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John reported the molestation to the police in December of 2003. Detective
Dennis Dodson had John call defendant and recorded the conversation. During the
conversation, although defendant was reluctant to admit any specific sexual contact, he
admitting “experimenting” with John and “tortur[ing] the hell” out of him.
B. Jane Doe
Jane Doe was defendant’s niece, who was about 10 years younger. In 1996, when
Jane was about 12 or 13, defendant and Jane were lying on the couch together.
Defendant began rubbing Jane’s vaginal area over her clothes with his hand. He then
touched her under her clothes and inserted his fingers into her vagina. Jane eventually
scooted away and defendant got off the couch.
Jane told someone about the incident about a year later. While living in Nevada,
Jane frequently ran away from home and was picked up by the police. On one occasion
in 1997, she was interviewed by a counselor for the Nevada probation department and,
during the interview, Jane disclosed that she had been molested by defendant. Jane later
reported the incident to Detective Todd Loveless in California in October of 2004.
3. Statute of Limitations
Defendant contends that his conviction in count 1 for the lewd and lascivious act
upon Jane Doe must be reversed because the Riverside County District Attorney
prosecuted defendant for the crime after the statute of limitations had expired.
The crime charged in count 1 allegedly occurred in 1996. The statute of
limitations for any crime punishable by a prison sentence of eight or more years is six
years. (§ 800.) The prosecution filed its complaint for this crime on October 26, 2004.

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Section 803, however, extends the statute of limitations under certain
circumstances. As relevant here, the 1996 version of section 803, subdivision (g)
provided as follows: “Notwithstanding any other limitation of time described in this
section, a criminal complaint may be filed within one year of the date of a report to a law
enforcement agency by a person of any age alleging that he or she, while under the age of
18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289,
or 289.5. This subdivision shall apply only if both of the following occur: [¶] (1) The
limitation period specified in Section 800 or 801 has expired. [¶] (2) The crime involved
substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding
masturbation which is not mutual, and there is independent evidence that clearly and
convincingly corroborates the victim’s allegation. . . .” (Former § 803, added by Stats.
1993, ch. 390, § 1, p. 2226.) When read together with section 800, this provision allows
the People to prosecute a sex crime involving a child victim within six years of the
offense or within one year of the victim reporting the offense, whichever is later. (People
v. Vasquez (2004) 118 Cal.App.4th 501, 505.)
The 1996 version of the statute provides that the one-year period begins when the
victim reports the crime to “a law enforcement agency.” (Former § 803, added by Stats.
1993, ch. 390, § 1, p. 2226.) Under the current version of the statute, the one-year period

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begins once the victim reports a crime to “a California law enforcement agency,” rather
than “a law enforcement agency.”5 (§ 803, subd. (f)(1).)
In this case, the victim reported the incident to a Nevada law enforcement agency
in May of 1997. Specifically, during her interview with Genny Gestaud, a counselor for
the Nevada juvenile probation department, Jane Doe responded to a set of standard
questions, one of which asked about prior molestation. In response to that question, Jane
disclosed that defendant had molested her. Gestaud followed the usual procedures and
prepared a report for the probation department. The report apparently noted that the
information would be forwarded to a Riverside law enforcement agency. In October
2004, Jane reported the crime to a California law enforcement agency, the Riverside
District Attorney’s office.
5 The current version of section 803 provides: “(f)(1) Notwithstanding any other
limitation of time described in this chapter, a criminal complaint may be filed within one
year of the date of a report to a California law enforcement agency by a person of any age
alleging that he or she, while under the age of 18 years, was the victim of a crime
described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, [fn. omitted] as
enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown
object.
“(2) This subdivision applies only if all of the following occur:
“(A) The limitation period specified in Section 800, 801, or 801.1, whichever is
later, has expired.
“(B) The crime involved substantial sexual conduct, as described in subdivision
(b) of Section 1203.066, excluding masturbation that is not mutual.
“(C) There is independent evidence that corroborates the victim’s allegation. If
the victim was 21 years of age or older at the time of the report, the independent evidence
shall clearly and convincingly corroborate the victim’s allegation.”

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Before trial, defendant filed a motion to dismiss the substantive charges and
enhancement allegations concerning the incident with Jane Doe on the ground that the
People had failed to prosecute the crime within the statute of limitations. Defendant also
argued that the late prosecution violated his rights under the due process and the ex post
facto clauses.
During the hearing on defendant’s motion, the prosecutor contended that there was
no evidence that the Riverside Police Department received Gestaud’s report. The
prosecutor noted that the district attorney’s office previously had not received any
information concerning the 1996 incident. The prosecutor argued that the former statute
did not bar the current action because the prior disclosure had to be made by the victim to
a California law enforcement agency, as required under the current version of section
803.
The trial court found that, even if the California authorities had received the
information from another source, the one-year period did not begin until the victim
herself reported the incident to the authorities. The court denied defendant’s motion.
In challenging the trial court’s ruling, defendant argues that the one-year period
expired because the victim reported the incident to a law enforcement agency as required
under the 1996 version of section 803. The initial question, then, is whether the one-year
period begins when the victim reports the incident to any law enforcement agency or
when she reports the incident to a California law enforcement agency. In other words,
did the addition of the word “California” effect a material change in the law?

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Based on the language of the statute and legislative intent, it appears that the
amendment was merely a clarification of existing law. The federal Constitution prohibits
the states from enacting certain laws that apply retroactively, including the statute of
limitations for the prosecution of crimes. (U.S. Const., art I, § 10, c. 1; see Stogner v.
California (2003) 539 U.S. 607, 611.) The ex post facto clause, however, does not apply
where the Legislature amends the statute merely to clarify the statute’s true meaning.
(See Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243; People v.
Robertson (2003) 113 Cal.App.4th 389, 393.) “‘While an intention to change the law is
usually inferred from a material change in the language of the statute [citations], a
consideration of the surrounding circumstances may indicate, on the other hand, that the
amendment was merely the result of a legislative attempt to clarify the true meaning of
the statute.’ [Citation.]” (Robertson, supra, at p. 393.)
That is what occurred here. The 1996 version of section 803 did not specify
whether the qualifying law enforcement agency could be an agency from a different
jurisdiction. Other language in the statute and the legislative intent, however, suggest
that the law enforcement agency could not be from a different state or jurisdiction.
Although former section 803, subdivision (g), refers to an unspecified law enforcement
agency, subdivision (f) in the same version of the statute contains a similar provision for
“a responsible adult or agency.” Former subdivision (f) specifically states, “[f]or
purposes of this subdivision, a ‘responsible adult’ or ‘agency’ means a person or agency
required to report pursuant to Section 11166.” (Former § 803, added by Stats. 1993, ch.
390, § 1, p. 2226.) In other words, under former section 803, subdivision (f), and section

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11166, the person or agency receiving a report of abuse has a statutory obligation to take
further action, which ultimately may include criminal prosecution. (See Thomas v.
Chadwick (1990) 224 Cal.App.3d 813, 821-822.) Presumably adults and agencies in
foreign jurisdictions would not be bound by California’s child abuse reporting statute
and, therefore, would not qualify as a “responsible adult” or “agency” under section 803.
When the Legislature added subdivision (g) to section 803 in 1993, it intended to
provide a new exception extending the statute of limitations to allow the People to
prosecute defendants who commit sex crimes against children where the requirements of
former subdivision (f) could not be met. (Assem. Com. on Public Safety, Bill Analysis of
Assem. Bill No. 290 (1992-1993 Reg. Sess.) as proposed April 13, 1993, p. 3.) Under the
former statute, subdivision (f)(2) required that the defendant has committed at least one
other sex crime against the same victim within the limitations period. (Former § 803,
added by Stats. 1993, ch. 390, § 1, p. 2229.) While subdivision (f) refers to any
“agency,” subdivision (g) refers specifically to a “law enforcement agency.” The cross-
reference to section 11166 in subdivision (f) narrows the scope of qualifying agencies in
that subdivision. Because it is an inherent function of law enforcement agencies to
follow up on criminal allegations, such language is unnecessary in subdivision (g). There
is nothing in the legislative history that suggests the Legislature intended to broaden the
scope of qualifying agencies to all law enforcement agencies in any jurisdiction.
The purpose of section 803, subdivision (g), was to afford greater opportunity to
prosecute sex crimes against child victims, not to decrease those opportunities by
allowing reports in other jurisdictions to trigger the statute of limitations. (See People v.

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Maguire (2002) 102 Cal.App.4th 396, 401.) “‘“The primary duty of a court when
interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate
the purpose of the law. [Citation.] . . . Ultimately, the court must select the construction
that comports most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute, and it must avoid an
interpretation leading to absurd consequences. [Citation.]” [Citation.]’ [Citation.]”
(People v. Zandrino (2002) 100 Cal.App.4th 74, 80.) Because the Legislature recognized
that child victims of sex crimes often do not report the crimes until they reach adulthood,
the purpose of section 803, subdivision (g), was to “preclude child molesters from
escaping punishment merely because the molestation was revealed after the victim
became an adult and after the limitations period had elapsed.” (Stogner v. Superior Court
(2001) 93 Cal.App.4th 1229, 1237.)
Consistent with this purpose, the change from “a law enforcement agency” to “a
California law enforcement agency” was nothing more than a clarification of the original
language. In 1997, the Legislature explicitly provided that the victim must report the
crime to “a California law enforcement agency.” (See Stats. 1997, ch. 29, § 1, p. 241.)
At this time, the Legislature was concerned primarily about the statute’s retroactive
application. (See Sen. Com. on Public Safety Bill Analysis of Assem. Bill No. 700
(1997-1998 Reg. Sess.) as amended June 10, 1997.) The legislative record is silent
concerning the addition of the word “California.” This lack of discussion indicates that
this minor change was not intended as a significant departure from existing law. When
read as a whole, the former version of section 803, subdivision (g) implied that the law

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enforcement agency, like the individual adult and agency mentioned in former
subdivision (f), was duty-bound to take any necessary action to investigate and assist in
the prosecution of sex crimes.
We conclude that the Legislature did not effect a change in the law by adding
“California” to section 803, subdivision (g). Defendant, therefore, cannot show that
application of the criteria that the victim report to a California law enforcement agency
violated the guarantee against ex post facto laws.
In this case, Jane Doe initially disclosed the molestation during an interview with a
counselor for the Nevada juvenile probation department. The counselor filed an abuse
and neglect report, which indicated that the information would be forwarded to the
California authorities. The next question, then, is whether the receipt by a California law
enforcement agency of a report from the Nevada authorities concerning a sex crime
committed against a child was sufficient to trigger the one-year period under section 803.
As held by the court in Ream v. Superior Court (1996) 48 Cal.App.4th 1812, the
plain language of former section 803, subdivision (g), indicates that the statute of
limitations begins once the victim reports the crime to the appropriate agency, not when
the agency receives information through another source. In Ream, the defendant
committed lewd and lascivious acts with a child who was six or seven years old in 1988.
The People filed its case against defendant in 1995 after having received Polaroid
pictures from defendant’s ex-wife. The pictures depicted the child as asleep or
unconscious. The child never reported the incident and even told an investigator that the
defendant had not molested her.

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In contending that the extension in former section 803, subdivision (g), applied,
the People argued that it should not have been required to inform the victim, who was
still a child of tender years, so that she might make the report herself. In rejecting the
People’s argument, the appellate court explained: “The relevant language of section
803(g) is clear and unambiguous. A prosecutor may file a complaint charging any of the
specified sex offenses within 1 year of the date of ‘a report to a law enforcement agency
by a person of any age alleging that he or she, while under the age of 18 years, was the
victim of’ the offense. The statute makes no reference to a report by a person who is not
a victim.” (Ream v. Superior Court, supra, 48 Cal.App.4th at p. 1818.) The People
specifically argued that the Legislature could not have intended to enlarge the statute of
limitations to protect a victim who was aware of the molestation and yet not afford the
same protection to a victim who was unaware of what had been done to her. The court
answered: “We do not agree that application of section 803(g) according to its plain
language achieves an absurd result. So applied, section 803(g) does not require the
People to inform the victim of the crimes committed against her; it simply requires a
report to law enforcement by the victim to remove the bar of the statute of limitations
absent which, in this case, prosecution remains time-barred.” (Ream, supra, 48 at p. 1819
[fn. omitted]; see also People v. Renderos (2003) 114 Cal.App.4th 961, 966.)
In addressing the specific question of whether the one-year period could be
triggered when the law enforcement agency receives a report from a different source, the
court, after considering the legislative history, explained that the Legislature anticipated
that the law enforcement agency may receive other corroborating evidence of the crime,

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but that the extension in former section 803, subdivision (g), applied only where the
victim comes forward and files a report. (Ream v. Superior Court, supra, 48 Cal.App.4th
at pp. 1820-1821.) The statute affords the child victims of sex crimes the opportunity to
report crimes committed against them even after the standard statute of limitations has
expired on the rationale that child victims may not come forward immediately, but
instead may wait until adulthood or until they have overcome the psychological pressures
often associated with such crimes. (Ibid.) Thus, the exception to the standard statute of
limitations apply to reports made by victims only and not by nonvictims. (Id. at p. 1821.)
Unlike in Ream, the situation in this case is complicated by the fact that the
California law enforcement agency may have received information from another law
enforcement agency based on a report made by the victim herself. Nevertheless, the
criteria in section 803—i.e., that the victim directly report the crime to a qualifying law
enforcement agency—was not satisfied. Although the victim told her Nevada probation
counselor about the molestation, she did not make the report to the California law
enforcement agency as required under the statute. (See People v. Maguire (2002) 102
Cal.App.4th 396, 401.)
Furthermore, if we interpret the statute as requiring that the limitations period
begins with the victim’s disclosure to an out-of-state counselor, our interpretation would
not only contradict the plain language of the statute, it also would fail to advance the goal
of the statute. Under the statute, the one-year period begins once the victim informs the
appropriate agency because, presumably, the agency is under a duty to investigate or
prosecute the crime. (See People v. Lopez (1997) 52 Cal.App.4th 233, 247-248.) In this

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case, there was no evidence in the record that the appropriate authorities knew about the
crimes and investigated the matter. If the victim had informed the appropriate authorities
in California, then it would be reasonable to impose a one-year limit because the state
would be duty-bound to exercise diligence in investigating the matter and bringing
charges if necessary. Disclosure to an out-of-state counselor may not have triggered the
same response. Although a victim’s out-of-state disclosure concerning a crime in
California ordinarily may lead to prosecution within the state, imposing a one-year limit
effectively would diminish and not enlarge the rights of victims who are now ready to
come forward and make a report.
We conclude Jane Doe’s disclosure to a probation counselor in Nevada did not
trigger the one-year limitations period under former section 803, subdivision (g). Instead,
the one-year period began when Jane reported the crime to the California authorities in
2004. The court, therefore, properly found that the prosecution filed its complaint within
the one-year period under former section 803, subdivision (g).
4. Instructions on the Statute of Limitations
Defendant claims the trial court failed to instruct the jury on the elements required
under former section 803, subdivision (g). Defendant also claims the court erred in
giving CALJIC No. 10.60 on corroborating evidence, which contradicted one of the
required elements.
A. Requirements of Former Section 803
Defendant specifically argues that there were disputed factual issues as to the
element required under former section 803, subdivision (g), and, therefore, the trial court

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should have instructed the jury on these elements and allowed the jury to make the
necessary factual findings.
It is true that, “[t]he prosecution bears the burden of pleading and proving the
charged offense was committed within the applicable period of limitations. [Citation.]
Where the pleadings do not show as a matter of law the prosecution is time barred, the
statute of limitations becomes an issue for the jury (trier of fact) if disputed by the
defendant. [Citations.] However, ‘the statute of limitations is not an “element” of the
offense insofar as the “definition” of criminal conduct is concerned.’ [Citations.]” (See
People v. Linder (2006) 139 Cal.App.4th 75, 84.)
Although the prosecution bears the burden of proving that the charges were timely
filed, the defendant may move to dismiss the charges on the ground that the statute of
limitations has expired as a matter of law. (See People v. Lopez (1997) 52 Cal.App.4th
233, 250-251; see also People v. Zamora (1976) 18 Cal.3d 538, 563-564, fn. 25.) “In
such a case, the trial court may then decide the issue. If the court rules that the statute has
run and dismisses the information or indictment, then the People may appeal that ruling.
[Citation.] On the other hand, if the evidence either establishes that the statute has not
run or is conflicting on the question, the court should deny the motion because there has
been no proof that the statute has run as a matter of law. ‘If the People prevail after such
a hearing, then the limitation issue must still be resolved by the jury if it remains disputed
by the defendant.’ [Citation.]” (Lopez, supra, at p. 250.)
Under former section 803, subdivision (g), the required elements include that (1)
the victim reported the crime to a law enforcement agency, (2) the crime involved

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substantial sexual conduct, (3) independent evidence corroborated the victim’s allegation,
and (4) the prosecution began within a year of the victim’s report. (See People v. Linder,
supra, 139 Cal.App.4th at p. 81.)
During the hearing on defendant’s motion, the court asked for argument as to the
required elements for extending the statute of limitations under former section 803,
subdivision (g). As to the last element, the prosecutor noted that the victim reported the
crime in California in the fall of 2004. As to the third element, the prosecutor briefly
argued that the evidence of defendant’s sexual molestation of John Doe constituted
sufficient corroboration of the victim’s report. There appeared to be no dispute as to
whether digital penetration constituted substantial sexual conduct. The parties focused
primarily on the first element. As discussed above, defendant argued that the statute of
limitations had run based on the victim’s report to the Nevada authorities. The court
rejected defendant’s argument and denied the motion.
The pivotal issue, therefore, involved a legal question as to the first element—i.e.,
whether the limitations period began when the victim reported the crime to the Nevada
authorities. At the hearing, defendant did not dispute whether there was sufficient
corroborating evidence. “As a general rule, the trial court need only instruct on the
statute of limitations when it is placed at issue by the defense as a factual matter in the
trial. [Citation.]” (People v. Smith (2002) 98 Cal.App.4th 1182, 1192.)
Moreover, this is not a case where the parties did not litigate the statute of
limitations issue. Instead, after a contested hearing, the court ruled that the complaint
was timely filed based on the tolling provision under former section 803, subdivision (g),

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and the victim’s report to the California authorities in 2004. After the court’s ruling,
defendant did not ask to have the other factual issues presented to the jury and did not
request an instruction on the required elements. While a criminal defendant may not lose
the protection of the statute of limitations accidentally, he “may certainly lose the ability
to litigate factual issues such as questions of tolling.” (People v. Williams (1999) 21
Cal.4th 335, 344; see also People v. Smith, supra, 98 Cal.App.4th at p. 1193.)
The record shows that defendant did not place the elements of the tolling statute,
including the requirement of corroborating evidence, at issue as a factual matter at trial.
We conclude, therefore, that the trial court had no duty to instruct on the required
elements of former section 803, subdivision (g).
B. Corroborating Evidence
Defendant argues that, in addition to failing to give an instruction on the
requirement of corroborating evidence under former section 803, subdivision (g), the
court erred in giving CALJIC No. 10.60. CALJIC No. 10.60 states: “It is not essential to
a finding of guilt on a charge of child molestation that the testimony of the witness with
whom sexual relations is alleged to have been committed be corroborated by other
evidence.” Although corroborating evidence was required under section 803, the
instruction nevertheless provided a correct statement of law that applied to the jury’s
determination of guilt on the substantive charges.
As noted by the People, the California Supreme Court in People v. Gammage
(1992) 2 Cal.4th 693, at pages 700 to 701, affirmed the rule that the conviction of a sex
crime may be sustained upon the victim’s uncorroborated testimony. The instruction

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does not elevate the victim’s credibility or otherwise affect the prosecution’s burden of
proof. (Id. at pp. 701-702.) CALJIC No. 10.60 is a correct statement of well-settled law.
(See People v. Adames (1997) 54 Cal.App.4th 198, 210.) The instruction applied to all
the substantive counts, including count 1. The court, therefore, properly instructed the
jury with CALJIC No. 10.60.
Although corroborating evidence was required as an element of the tolling
provision, the statute of limitations issue was not before the jury. As stated above, none
of the elements of the tolling provisions remained at issue after the hearing on
defendant’s pretrial motion to dismiss count 1. And, even if the statute of limitations
issue had been presented to the jury, it was incumbent upon defendant to request a
limiting instruction. (See People v. Farley (1996) 45 Cal.App.4th 1697, 1711.)
The court’s instruction was correct and adequate for the purpose of resolving the
issues presented to the jury.
5. Sufficiency of the Evidence
Defendant also argues that the prosecution failed to prove that the crime was
committed within the applicable statute of limitations.
The statute of limitations is not an essential element of a crime that must be found
by a jury to support a conviction for that offense. (See People v. Linder, supra, 139
Cal.App.4th at p. 84.) Rather, the statute of limitations issue may be presented to the
court and resolved at a pretrial hearing. (See People v. Zamora, supra, 18 Cal.3d at pp.
563-564, fn. 25.) “If the People prevail after such a hearing, then the limitation issue
must still be resolved by the jury if it remains disputed by the defendant.” (Ibid.)

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As stated above, in this case, the issue did not remain disputed by defendant. At
the hearing, the only dispute was over the interpretation of the applicable tolling statute,
which was decided adversely to defendant then, and now on appeal. Because the other
issues were not disputed by defendant, the court had no occasion to present the issue to
the jury and the prosecution had no corresponding duty to prove that the tolling provision
applied.
6. CALJIC No. 10.47
Defendant claims the trial court erred in refusing to instruct the jury with CALJIC
No. 10.47 on the elements of the crime of sodomy with a minor. Defendant argues that
sodomy with a child under the age of 18 (§ 286, subd. (b)(1)), was a lesser-included
offense of sodomy by force (§ 286, subd. (c)(2)).
Defendant was charged with two counts of sodomy by force (§ 286, subd. (c)(2)).
During the trial, defendant’s attorney argued that sodomy with a child was a lesser-
included offense of sodomy by force and requested CALJIC No. 10.47 on the elements of
sodomy with a child. The trial court disagreed with defendant and denied his request.
“A trial court must instruct the jury on a lesser included offense when the evidence
raises a question whether all of the elements of the charged crime are present, and the
evidence would support a conviction of the lesser offense. [Citation.] ‘[A] lesser offense
is necessarily included in a greater offense if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading, include all the elements
of the lesser offense, such that the greater cannot be committed without also committing
the lesser.’ [Citation.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 855.)

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Under both the elements test and the accusatory pleading test, sodomy with a child
under 18 is not a lesser included offense of sodomy by force. The statutory elements of
the greater offense does not include an essential element of the lesser offense, namely,
that the victim be a person under 18 years of age. “The nonforcible sex crimes require
the perpetrator and victim to be within certain age limits while the forcible sex crimes do
not [citation]; thus, the nonforcible crimes are not lesser included offenses of the forcible
sex crimes.” (People v. Scott (2000) 83 Cal.App.4th 784, 794.)
Counts 6 and 8 in the fourth amended information also do not contain an
allegation concerning the age of the victim. We reject defendant’s suggestion that we
should take into consideration the allegations of the victim’s age elsewhere in the
charging document. In determining whether an offense is necessarily included in a
greater offense, we consider each count independently. We cannot piece together
elements from crimes charged under separate counts to find a lesser included offense
where there is none.
We conclude that the trial court properly found that sodomy with a child under 18
was not a lesser included offense of the crimes charged in counts 6 and 8.
7. CALJIC No. 10.65
Defendant also claims the trial court erred in refusing to instruct the jury with
CALJIC No. 10.65 on consent. CALJIC No. 10.65 states, in part, “[t]here is no criminal
intent if the defendant had a reasonable and good faith belief that the other person
voluntarily consented to engage in . . . [sodomy] . . . .” (CALJIC No. 10.65 (April 2006
ed.).) The trial court denied defendant’s request on the mistaken assumption that consent

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was not at issue where the crimes involved a child. (See People v. Anderson (1983) 144
Cal.App.3d 55, 61-62.) Defendant argues that, because consent would negate the force or
fear required for the crime of forcible sodomy, as charged in counts 6 and 8, the trial
court should have given the requested instruction.
A trial court must give a requested instruction on a defense theory if it is supported
by substantial evidence. (People v. Panah (2005) 35 Cal.4th 395, 484.) In particular,
CALJIC No. 10.65 is an instruction regarding a mistake of fact and is appropriate when
there is some evidence deserving consideration that defendant honestly and reasonably,
albeit mistakenly, believed that the victim consented to the sex act. (See People v.
Williams (1992) 4 Cal.4th 354, citing People v. Mayberry (1975) 15 Cal.3d 143, 157.) If
supported by substantial evidence, the court should provide an instruction that is
requested by the defense even if it is inconsistent with defendant’s main theory at trial.
(See People v. Elize (1999) 71 Cal.App.4th 605, 611-612, 615.)
In this case, defendant’s statements during the pretext call may have supported a
reasonable and good faith belief that John Doe consented to engage in the acts of
sodomy. For example, defendant said, “We could sit and argue all day but you know
what, if you [sic] sitting down recording this I’m gonna tell you the truth, ‘you asked
me,’ I mean, ‘I asked you,’ and you said ‘sure’ and you know like, I mean you even
asked me--” Defendant also said, “. . . you act like I forced you every single time you
always, [John] I, totally, you were cool with it, you were like, ‘you wanna do this?’ ‘uh,
yes sir.’” While these statements also are consistent with a finding that John Doe
acquiesced in the acts because of fear, this evidence could have provided an adequate

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basis for giving the requested instruction. We conclude that the trial court erred in
denying defendant’s request.
The error, however, was harmless under any standard. (See People v. Anderson,
supra, 144 Cal.App.3d at p. 62.) In this case, although defendant requested CALJIC No.
10.65, the defense theory was that the incidents of sodomy did not occur and that there
was a lack of evidence corroborating John Doe’s allegations. Defendant’s trial attorney
argued that, in addition to a lack of physical evidence, none of the other family members
who supposedly caught them in the act or saw them immediately afterward confirmed
John’s testimony concerning the incidents and his injuries. Defendant’s trial attorney
attacked John’s credibility and pointed out inconsistencies in his testimony. The absence
of an instruction on consent did not affect defendant’s trial. When the defendant relies on
the defense of consent, the defendant admits that the acts occurred, but that the victim
consented to participate in the sex acts. (See People v. Key (1984) 153 Cal.App.3d 888,
897.) If the defendant denies that the acts occurred, he cannot claim that the victim
consented. Consent is inconsistent with the theory that the victim fabricated the
allegations.
Furthermore, defendant argues that John consented because he was afraid of him.
A violation of section 286, subdivision (c)(2), occurs when the defendant commits the act
of sodomy by force, violence, duress, menace or fear. If defendant took advantage of
John’s fear, John’s participation was secured not by consent, but by force or fear within
the meaning of the state. When the victim feels compelled to obey out of fear, such

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compulsion is inconsistent with a claim of consent. (See generally People v. Majors
(2004) 33 Cal.4th 321, 326-327.)
Theoretically, the victim may be afraid and the defendant may be unaware of the
victim’s fear. Nevertheless, defendant’s own statements contradict his claim of a
reasonable and good faith belief that John consented to the sex acts. Defendant admitted
that he experimented on John and “tortured the hell out of [him].” Defendant also did not
deny that, during the course of their relationship, defendant occasionally used force,
including that he hit John, grabbed him by the throat, and gave him a bloody nose.
Therefore, while it may be theoretically possible for defendant to be unaware of John’s
fear, the evidence shows that defendant either forced John to participate in the sex acts or
John acquiesced out of fear of reprisal. Either way, overwhelming evidence contradicted
defendant’s consent defense.
We conclude that, although the trial court should have given the instruction
because there was some evidence that supported it, the evidence in the record
overwhelmingly supported the jury’s finding that defendant committed the acts by force
or fear.
8. Falsetta
Defendant raises a due process objection to the trial court’s admission of evidence
of other uncharged sex acts under Evidence Code section 1108. Defendant, however,
acknowledges that the California Supreme Court has rejected the same objection in
People v. Falsetta (1999) 21 Cal.4th 903. He raises the issue solely for the purpose of
preserving the issue for federal review. As anticipated, we are bound by our Supreme

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Court’s holding in Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
9. Blakely
Also for the purpose of preserving the matter for further review, defendant claims
the trial court erred by imposing the upper term in count 6 based on facts not found by a
jury beyond a reasonable doubt in violation of the rule established in Blakely v.
Washington, supra, 542 U.S. 296. As defendant acknowledges, the California Supreme
Court has rejected this claim and found that the trial court’s exercise of judicial discretion
to impose the upper term does not violate defendant’s constitutional right. (People v.
Black (2005) 35 Cal.4th 1238, 1244.) As long as Black remains good law, we are bound
by our Supreme Court’s holding. (See Auto Equity Sales, Inc. v. Superior Court, supra,
57 Cal.2d at pp. 455-456.)
10. Disposition
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Hollenhorst
Acting P. J.
We concur:
s/Richli
J.
s/Miller
J.

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