Filed 12/31/19 P. v. Sul CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY FLORES SUL,

Defendant and Appellant.

F076068

(Super. Ct. No. VCF316744)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Catherine Chatman, Daniel B. Bernstein, and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Larry Flores Sul was charged with six counts of committing forcible lewd acts upon his granddaughter, a minor under 14 years of age (Pen. Code, § 288, subd. (b)(1) [counts 2-7]). , The information further alleged he sustained three prior convictions, each of which qualified as a strike offense (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony (§ 667, subd. (a)(1)); previously served four separate prison terms (§ 667.5, subd. (b)); and had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). Following trial, the jury found defendant guilty as charged as to counts 5 and 7; found him guilty of the lesser included offense of committing nonforcible lewd acts upon a minor under 14 years of age (§ 288, subd. (a)) as to the other counts; and found true the allegation of substantial sexual conduct. Thereafter, defendant admitted to two prior convictions and all prior prison terms and the prosecution dismissed the remaining prior conviction allegation. Defendant was sentenced to an aggregate term of 232 years to life: 25 years to life, plus 10 years for two prior serious felony convictions and two years for two prior prison terms, on each of counts 2, 3, 4, and 6; and 30 years to life, plus 10 years for two prior serious felony convictions and two years for two prior prison terms, on each of counts 5 and 7.

In his opening brief, defendant presents several arguments. First, the evidence did not support the forcible lewd act convictions on counts 5 and 7. Second, the trial court erroneously permitted a prosecution witness to testify defendant had raped her. Third, the court should not have issued CALCRIM No. 1191 (Evidence of Uncharged Sex Offense), which “allow[ed] the jury to engage in a permissive inference that[,] based upon . . . testimony of dissimilar offenses with an adult woman, . . . [defendant] was disposed to commit sexual offenses in general and thus . . . disposed to commit a totally unrelated sexual offense against a minor.” (Italics omitted.) Fourth, the court should have affirmatively answered the jury’s questions regarding the type of evidence that could be considered in deciding whether the prosecution proved defendant’s guilt beyond a reasonable doubt. Fifth, defense counsel rendered ineffective assistance because she did not object to the issuance of CALCRIM No. 1191 and/or the court’s inadequate response to the juror’s questions. Finally, the cumulative effect of the aforementioned errors deprived defendant of due process.

We conclude: (1) substantial evidence supported the forcible lewd act convictions on counts 5 and 7; (2) the court did not abuse its discretion when it allowed the witness to testify defendant had raped her; (3) the court properly issued CALCRIM No. 1191; (4) the court did not abuse its discretion when, in response to the jury’s questions about the reasonable doubt standard, referred to instructions already given; and (5) there was no cumulative error.

In supplemental briefs, defendant highlights amendments to (1) sections 667, subdivision (a), and 1385, enacted by Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill No. 1393) (Stats. 2018, ch. 1013, §§ 1–2, eff. Jan. 1, 2019); and (2) section 667.5, subdivision (b), enacted by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill No. 136) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020). He argues the case should be remanded to (1) afford the trial court an opportunity to exercise its newfound sentencing discretion as to the prior serious felony enhancements; and (2) have the court strike the prior prison term enhancements. We accept the Attorney General’s concession that a remand for both purposes is appropriate.

STATEMENT OF FACTS

I. Prosecution’s case-in-chief
II.
a. Y.A.
b.
Y.A. is defendant’s granddaughter. In 2013 or 2014, when she was 10 or 11 years of age, he lived in a trailer next to her house. Y.A. testified defendant touched her “private spot” “[i]n between the legs” for the first time when she was 11 years of age and continued to do so until he moved away less than a year later. According to Y.A., defendant claimed his conduct was justified because “[her] mom never took [her] to . . . get a physical” and “[her] mom let him.” Y.A. believed defendant because she “didn’t think . . . he would lie to [her].”

Numerous instances of abuse occurred in different locations. Several times, when Y.A. slept in her or her brother’s bedroom, she woke up and saw defendant’s hand on top of her “private area.” “[E]very Sunday,” when defendant drove Y.A. to and from church in his truck, he reached over and touched her “private spot.” On multiple occasions, when defendant and Y.A. were alone in his trailer, he not only touched her “private spot” but also “touch[ed] inside [her] private area” by putting his hand beneath her underwear and “stick[ing] it in [her]” “[l]ike toilet paper.” During some of the incidents in the trailer, defendant told Y.A., “Do you want me to go to jail? If you tell, I’ll go to jail.”

Y.A. testified defendant “was [her] mom’s world” and, before the abuse, she “thought he was a good guy” and “loved him just as much as [her] mom did.” His actions “[d]isgusted” her. As a result, Y.A. avoided defendant. “[I]f he was . . . right there or something,” she would ride her bicycle or play soccer with her brothers in the backyard. Y.A. also stopped attending church because she “didn’t want to get touched no more.” Eventually, she “couldn’t deal with it no more” and revealed what had happened to her to other family members.

The jury watched a recording of Y.A.’s April 1, 2015 CART interview. In the interview, Y.A. stated defendant touched her “private spot” approximately 30 times. He placed his hand atop her “private spot” when she was asleep (sometimes “under [her] clothes and sometimes on top”) and during rides to church. Defendant also placed his hand beneath her underwear and put his fingers in Y.A.’s “private spot,” which felt “gross.” In his trailer, defendant told Y.A. that her mother “said that he could touch [her] underwear every day.” He also said he could touch her “private spot” because “[her] mom didn’t take [her] to a physical” and his actions were “normal.” Defendant warned Y.A. “he would go to prison” “if [she] ever told on him” and “it would be [her] fault.”

c. P.S.
d.
P.S. is defendant’s daughter and Y.A.’s mother. She testified Y.A. initially liked defendant when he came to live on their residential property in his trailer and used to go to church with him on Sundays. At some point, however, Y.A. stopped attending church. P.S. noted defendant “would tell [Y.A.] that she had to do her homework in the trailer.” He also “bought [Y.A.] a TV,” “kept it in his trailer,” and “[o]nly [let] [Y.A.] . . . go in there and watch it.” Before P.S. found out about the abuse, she “loved [defendant] with all [her] heart” and “held him as high as [she] held God.” When the prosecutor asked P.S. whether she allowed defendant to “check in [Y.A.’s] vaginal area,” she exclaimed, “No!”

e. V.R.
f.
V.R. is defendant’s ex-wife and Y.A.’s grandmother. She testified Y.A. “used to like [defendant] a lot” and went to church with him, but her behavior toward him changed. V.R. recalled:

“[T]he last time when [Y.A.] was at my home and [defendant] drove up to the yard and I told her, ‘Here comes your grandpa,’ and she ran. She took off running to the room. And then I’m looking at her like, ‘What are you doing? Don’t you like your grandpa?’ And she goes, ‘No.’ ”

g. M.N.
h.
M.N. is defendant’s daughter. She testified defendant raped her more than two decades earlier when she was 19 or 20 years of age. At the time of the incident, defendant had been living with M.N., her husband, and her children for approximately five months.

III. Defense’s case-in-chief
IV.
Bill K. testified he and defendant attended the same church for over a year. For at least six months, he saw defendant and Y.A. there “virtually every Sunday.” According to Bill, Y.A. “acted like she loved [defendant].”

S.G. is defendant’s niece and P.S.’s cousin. She testified she and defendant attended the same church. S.G. saw Y.A. there “about ten times.” The two conversed occasionally. Y.A. never said she disliked or feared defendant. S.G. acknowledged she and Y.A. were “[n]ot very close.”

DISCUSSION

I. Substantial evidence supported defendant’s forcible lewd act convictions on counts 5 and 7
II.
On appeal, defendant concedes he committed lewd acts upon Y.A. as to counts 5 and 7. However, he asserts the evidence did not sufficiently establish he did so by means of force, violence, duress, menace, or fear of immediate and bodily unlawful injury.

“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.]” (People v. Tripp, supra, at p. 955, italics omitted.) “This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” (Ibid.)

“Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it.” (People v. Redmond, supra, 71 Cal.2d at p. 755.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 632.)

An individual “who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.” (§ 288, subd. (a).) An individual “who commits an act described in [section 288,] subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.” (§ 288, subd. (b)(1).)

The term “duress” means “a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999, 1004, italics omitted.) This definition “is objective in nature and not dependent on the response exhibited by a particular victim.” (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto); see id. at p. 243 [“A perpetrator may use duress . . . against a victim even if this conduct does not ultimately influence the victim’s state of mind. In the context of lewd acts with a child under 14, it is the defendant’s menacing behavior that aggravates the crimes and brings it under section 288[, subdivision ](b).” (italics omitted)].) “ ‘ “The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” [Citation.]’ [Citations.] ‘Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ [Citations.]” (People v. Veale (2008) 160 Cal.App.4th 40, 46; accord, People v. Cochran (2002) 103 Cal.App.4th 8, 15 (Cochran), disapproved on other grounds by Soto, supra, at p. 248, fn. 12.)

The record—viewed in the light most favorable to the prosecution—demonstrates defendant was a venerated relative with clout. P.S., defendant’s daughter and Y.A.’s mother, testified she loved her father “with all [her] heart” and “held him as high as [she] held God.” Y.A. testified her grandfather “was [her] mom’s world” and she “loved him just as much as [her] mom did.” Defendant allowed only Y.A. to watch television in his trailer and instructed Y.A. to complete her homework there. On multiple occasions, when the two were alone in the trailer, defendant put his fingers in Y.A.’s vagina “[l]ike toilet paper.” “ ‘ “Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim” [are] relevant to the existence of duress. [Citation.]’ [Citation.]” (People v. Veale, supra, 160 Cal.App.4th at p. 49.) Although defendant declared his actions were medically necessary, “normal,” and even permitted by P.S., he nonetheless warned Y.A. “he would go to prison” “if [she] ever told on him” and “it would be [her] fault.” “Under these circumstances, given the age . . . of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress.” (Cochran, supra, 103 Cal.App.4th at p. 16.)

Defendant cites a footnote in People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), disapproved on other grounds by Soto, supra, 51 Cal.4th at page 248, footnote 12, for the proposition that “the mere act of instructing the child victim not to reveal the molestations to anyone does not support a finding of duress.” It reads:

“To support the claim of duress, the People seek to rely on [the victim]’s testimony that [the defendant] urged [her] not to disclose the molestations because it would ruin his marriage and his naval career. . . . [H]owever, such testimony establishes merely the threat of hardship directed at ‘later disclosure of the sex acts and not [the failure to perform] the sex acts themselves.’ [Citation.]” (Hecker, supra, 219 Cal.App.3d at p. 1251, fn. 7, italics omitted.)

We point out Division One of the Fourth Appellate District, which issued Hecker, subsequently disavowed this footnote. It specified in Cochran:

“We believe this language in Hecker is overly broad. The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family . . . if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent. We also note that such a threat also represents a defendant’s attempt to isolate the victim and increase or maintain her vulnerability to his assaults.” (Cochran, supra, 103 Cal.App.4th at p. 15.)

Moreover, to the extent Hecker tries to “distinguish between warnings enjoining nondisclosure and noncompliance,” “[w]e doubt that young victims of sexual molestation readily perceive this subtle distinction. A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.” (People v. Senior (1992) 3 Cal.App.4th 765, 775.)

Defendant also cites People v. Espinoza (2002) 95 Cal.App.4th 1287, which is factually inapposite. In that case, the defendant never warned the victim that reporting the molestation would imperil the family. (See id. at pp. 1292-1295.)

III. The trial court did not abuse its discretion by allowing M.N. to testify defendant had raped her
IV.
a. Background
b.
In a pretrial motion, the prosecution asked the court to permit M.N.’s testimony pursuant to Evidence Code section 1108, inter alia. At a motion hearing, defense counsel noted the uncharged offense occurred roughly two decades earlier, involved an adult victim, and was not “substantially similar” to the charged crimes. In response, the prosecution identified comparable circumstances—such as the age disparity between defendant and the two victims as well as his “position of power and control over” them—and argued M.N.’s testimony would be brief and no more inflammatory than Y.A.’s testimony. The court ruled:

“[U]nder Evidence Code [s]ection 1108, there is, obviously, some prejudicial effect whenever [a] prior incident [involving] another victim is introduced in the case for trial. The test is [whether] the probative value substantially outweighed . . . the probative prejudicial effect . . . . I don’t think that’s the case. I think there is substantial probative value in that the defendant is allegedly victimizing relatives in his family, i.e., his daughter and granddaughter. [¶] . . . [¶]

“Once again, as counsel points out, just the charges in this case are highly prejudicial allegations in and of themselves. Adding the daughter, I don’t think is going to be so prejudicial to outweigh the probative value of showing that there is commonality here between the offenses.”

c. Analysis
d.
Generally, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) However, “[i]n 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 [Evidence Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352.” (Id., § 1108, subd. (a).) “Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, [Evidence Code] section 1108 implicitly abrogates prior decisions of [the California Supreme Court] indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (People v. Falsetta (1999) 21 Cal.4th 903, 911.)

“Evidence Code section 1108 ‘radically changed’ the general rule prohibiting propensity evidence in ‘sex crime prosecutions.’ [Citation.] ‘By removing the restriction on character evidence in [Evidence Code] section 1101, [Evidence Code] section 1108 now “permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose” [citation], subject only to the prejudicial effect versus probative value weighing process required by [Evidence Code] section 352.’ [Citation.] Evidence of prior crimes is admissible, unless otherwise excluded by Evidence Code section 352, whenever it may be helpful to the jury on a commonsense basis, for resolution of any issue in the case, including the probability or improbability that the defendant has been falsely accused. [Citation.]” (People v. Robertson (2012) 208 Cal.App.4th 965, 990, italics omitted (Robertson).)

“ ‘To be admissible under Evidence Code section 1108, “the probative value of the evidence of uncharged crimes ‘must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citations.]” [Citation.] “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” [Citation.] “The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” [Citation.]’ [Citation.]” (Robertson, supra, 208 Cal.App.4th at pp. 990-991.)

“A challenge to admission of prior sexual misconduct under Evidence Code sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and will be reversed ‘only if the court’s ruling was “arbitrary, whimsical, or capricious as a matter of law. [Citation.]” [Citation.]’ [Citation.] ‘We review the correctness of the trial court’s ruling at the time it was made, . . . and not by reference to evidence produced at a later date.’ [Citation.]” (Robertson, supra, 208 Cal.App.4th at p. 991.)

Here, the court concluded M.N.’s testimony that defendant—her father—raped her when she was 19 or 20 years of age could constitute probative circumstantial evidence of defendant’s propensity to sexually abuse young female relatives. Although this testimony concerned rape rather than lewd acts, “ ‘[i]t is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.’ [Citation.]” (People v. Loy (2011) 52 Cal.4th 46, 63 (Loy); see Evid. Code, § 1108, subd. (d)(1)(A) [rape and lewd acts among enumerated crimes]; see also People v. Soto (1998) 64 Cal.App.4th 966, 984 [“ ‘ “Many sex offenders are not ‘specialists’, and commit a variety of offenses which differ in specific character.” ’ ”].) That the uncharged offense occurred more than two decades earlier “is a relevant factor for the court to consider in exercising its discretion” but “alone does not compel exclusion of the evidence.” (People v. Cordova (2015) 62 Cal.4th 104, 133.) Likewise, though Y.A. and M.N. were 11 years of age and 19 or 20 years of age, respectively, when they were abused, “the age differences do not make the prior offense[] wholly irrelevant.” (People v. Escudero (2010) 183 Cal.App.4th 302, 311.) The court added the propensity evidence would not be exceedingly inflammatory since the charges in the instant case were “highly prejudicial allegations in and of themselves.” Furthermore, the record shows M.N.’s testimony was brief, which ensured the jury would not expend an inordinate amount of time “trying the uncharged offense[]” so as to “dwarf[] the trial on the current charge [and] unfairly prejudice the defendant” (People v. Frazier (2001) 89 Cal.App.4th 30, 42); and the court issued CALCRIM No. 1191 (see at pp. 14-15, post), which offset the risk the “jury might punish the defendant for his uncharged crime[] regardless of whether it considered him guilty of the charged offense” (People v. Frazier, supra, at p. 42). We find no abuse of discretion.

V. The trial court properly issued CALCRIM No. 1191
VI.
a. Background
b.
The court instructed the jury:

“[CALCRIM No. 1191:] The People presented evidence that the defendant committed other offenses against [M.N.], [his] daughter, that were not charged in this case. You may consider this evidence only if the People have proved by [a preponderance of the evidence] that the defendant in fact committed the offense. [¶] Proof by a preponderance of the evidence . . . is a different burden of proof [from proof] beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] . . . [¶]

“If you decide that the defendant committed the uncharged offense, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to [com]mit sexual offenses[, and b]ased on that decision, also [con]clude that the defendant was likely to commit and did commit forceful lewd act upon a child as charged here.

“If you conclude that the defendant committed the uncharged offense[], that conclusion is only one factor to consider along with all the other evidence. It’s not sufficient by itself to prove the defendant is guilty of forceful lewd act upon a child. The People must still prove each charge beyond a reasonable doubt.”

c. Analysis
d.
On appeal, defendant argues:

“CALCRIM No. 1191 although perhaps correct in the abstract, when applied here, resulted in an impermissive inference based on a general disposition conclusion[,] lowering the prosecution’s burden of proof as it concerns reasonable doubt, and thereby violating [defendant]’s substantial rights under due process. . . . [¶] . . . [¶]

“. . . [R]ape . . . of an adult woman has nothing to do with whether an individual harbors a pedophile tendency to engage in lewd conduct with a minor child. [Evidence Code s]ection . . . 1108 may only be used to prove a propensity to commit sufficiently similar charged acts.”

In other words, defendant believes CALCRIM No. 1191 should not have been issued because no rational inference of propensity could be drawn from M.N.’s testimony about her rape, which was too dissimilar to the lewd acts charged in the instant case.

As previously discussed, “ ‘[i]t is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108’ ” (Loy, supra, 52 Cal.4th at p. 63) and rape and lewd acts are among the enumerated crimes (see Evid. Code, § 1108, subd. (d)(1)(A)). In addition, while the charged and uncharged crimes were not identical, they nonetheless shared a significant commonality: defendant’s sexual abuse of a young female relative. This “permitted the inference that defendant had a propensity to commit such [misconduct].” (People v. Cordova, supra, 62 Cal.4th at p. 134.) To the extent defendant maintains Evidence Code section 1108 requires even greater similarity between the charged and uncharged offenses, our Supreme Court rejected that notion in Loy:

“Before [Evidence Code] section 1108 was enacted, Evidence Code section 1101 governed the admission of prior criminal conduct, and a body of law developed concerning how similar the prior conduct had to be to the charged crime; the required degree of similarity varied depending on the use for which the evidence was offered. [Citation.] . . . ‘In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.’ [Citation.] Or, as another court put it, ‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. . . .’ [Citation.]” (Loy, supra, 52 Cal.4th at p. 63.)

VII. The trial court did not abuse its discretion by referring to instructions already given in response to the jury’s questions about the reasonable doubt standard
VIII.
a. Background
b.
The court instructed the jury:

“[CALCRIM No. 220 (Reasonable Doubt):] The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant because he’s been arrested for these crimes, brought to trial, or charged with a crime.

“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.

“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.

“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. [¶] . . . [¶]

“[CALCRIM No. 300 (All Available Evidence):] Neither side is required to call all witnesses who may have information about the case or produce all physical evidence that might be relevant.”

During deliberations, the jury submitted a note specifying it had a “legal question.” (Capitalization omitted.) After the jury was brought back into court, in the presence of defendant and counsel, the following colloquy transpired:

“THE COURT: Good afternoon, ladies and gentlemen. Are you the foreperson?

“A JUROR: Yes.

“THE COURT: What’s the question?

“A JUROR: Given the presumption of the defendant being not guilty until proven so beyond a reasonable doubt, can we just get one more time good clarification of what would it take for us to move beyond a reasonable doubt?

“THE COURT: Well, let me recite it to you the best I can the instruction regarding reasonable doubt. Did you read that over?

“A JUROR: We did.

“THE COURT: I can’t give you any more guidance than that. It’s up to you collectively to decide that issue. I’m sorry I can’t give you more guidance on that. Is there any other question?

“JUROR NO. 4: I have a question, but I don’t know if I’m gonna phrase it right. So we were kind of having – we were uncertain about it. So is the reasonable doubt standard based on solely the evidence that was presented? Or can it also be absence of additional evidence that we may feel was not presented? Does that make sense?

“THE COURT: Just a moment. Let me have the attorneys approach. [¶] . . . [¶] . . . Why don’t you continue deliberating. I’m going to try to talk to the attorneys a little bit more to try to give you some guidance.”

Outside the presence of the jury, the following colloquy transpired:

“THE COURT: For the record, I’ve discussed the matter at bench here. And I wanted to write out something after conferring with both counsel before I instruct them. [¶] So I’m going to reread to them again CALCRIM [No.] 300. Neither side is required to call all witnesses who may have information about the case or produce all physical evidence that might be relevant. [¶] . . . [¶] . . . Either of you have anything to add regarding that last portion? [¶] . . . [¶]

“[PROSECUTOR]: . . . . That’s fine with the People. Redirecting them, maybe, to the beyond a reasonable doubt jury instruction itself again.

“[DEFENSE COUNSEL]: I don’t think that it’s improper to tell the jury that they can consider the absence of evidence that they might think would be helpful for their decision. I mean, it’s true that neither side has to present both sides, but obviously something like DNA would help if they thought oh, we want DNA. It’s not improper for them to consider that.

“[PROSECUTOR]: I think that providing the jury with some sort of specific item of what potentially could be lacking would be leading them to suggest that that would be part of the law, which it’s not.

“[DEFENSE COUNSEL]: I’m not suggesting the specifics. I’m just suggesting that we can say yes, you can consider . . . the absence of additional evidence.

“THE COURT: You can consider lack of evidence in deciding whether there is reasonable doubt, but you cannot speculate about –

“[PROSECUTOR]: The People object to that second part. It’s not part of the jury instructions. That’s not what the law is on the matter.

“THE COURT: I don’t want them to speculate. Could I have that read back one more time? [¶] (Record read back) [¶] . . . I think the only fair response to that last portion is reading [CALCRIM No.] 300, and it’s for them to decide whether there was sufficient evidence presented to prove the case. Then I’ll leave it at that.

“[PROSECUTOR]: That’s fine.

“[DEFENSE COUNSEL]: Okay.”

After the jury returned, the court stated:

“I’m sorry to keep you waiting so long. But in response to that last question, first of all, I already instructed you and I’ll state it again. Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant. [¶] Whether or not the case has been proven beyond a reasonable doubt is for you to decide. Now, that’s all I can tell you. That’s why we have juries. I wish I could be more helpful. Collectively, you have to make that determination. You can resume your deliberation.”

c. Analysis
d.
“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.) “Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “[A] court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid., italics omitted.) “We review for an abuse of discretion any error under section 1138.” (People v. Eid (2010) 187 Cal.App.4th 859, 882.)

Here, the jury foreperson asked the court for “good clarification of what [it would] take for [the jury] to move beyond a reasonable doubt.” The court inquired whether the jury read CALCRIM No. 220. The foreperson stated, “We did.” At that point, the court elected not to further elaborate on this instruction. Another juror then asked whether “the reasonable doubt standard” could be “based on solely the evidence that was presented” or based on the “absence of additional evidence that . . . was not presented.” The court excused the jury and sought counsels’ input on how best to proceed. The prosecutor agreed with the court’s preliminary proposal to reread CALCRIM No. 300 and suggested recital of CALCRIM No. 220. Defense counsel, on the other hand, encouraged the court to explicitly affirm the propriety of considering the absence of evidence in deciding whether the prosecution proved defendant’s guilt beyond a reasonable doubt. The court considered reissuing CALCRIM No. 220 with an appended line (“You can consider lack of evidence in deciding whether there is reasonable doubt . . . .”) but opted not to, worried the jury would speculate. It ultimately reread CALCRIM No. 300 and advised “[w]hether or not the case has been proven beyond a reasonable doubt is for [the jury] to decide.”

We cannot conclude the court’s response was arbitrary, whimsical, or capricious as a matter of law. With respect to the jury’s questions about the reasonable doubt standard, CALCRIM No. 220 as given was full and complete. “[T]he plain language . . . tells the jury that ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’ [Citation.] . . . The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt.” (People v. Flores (2007) 153 Cal.App.4th 1088, 1093.) Moreover, because the court gave CALCRIM No. 220 verbatim, it already “provide[d] the legislatively approved definition of reasonable doubt” and “satisfie[d] its statutory obligation to instruct on” presumption of innocence and the requirement of proof beyond a reasonable doubt. (People v. Aranda (2012) 55 Cal.4th 342, 353-354, fn. omitted; see §§ 1096, 1096a; see also People v. Aranda, supra, at p. 353 [“[T]he substance of [section 1096] has . . . been incorporated into . . . CALCRIM No. 220.”].) Any reluctance to modify this instruction was understandable. (See People v. Centeno (2014) 60 Cal.4th 659, 667 [“The case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard. [Citations.] We have recognized the ‘difficulty and peril inherent in such a task,’ and have discouraged such ‘ “experiments” ’ by courts and prosecutors.”].)

IX. There was no cumulative error.
X.
“[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) “A claim of cumulative error is in essence a due process claim . . . .” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) “ ‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.” ’ ” (Ibid.) “[T]he reviewing court must ‘review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to [the] defendant in their absence.’ ” (People v. Williams (2009) 170 Cal.App.4th 587, 646.)

“Having determined that no error occurred . . . , we conclude that this contention lacks merit . . . .” (People v. Heard (2003) 31 Cal.4th 946, 982.)

XI. The case will be remanded to afford the trial court an opportunity to exercise its sentencing discretion as to the prior serious felony enhancements
XII.
At the time defendant was charged, convicted, and sentenced, section 667, former subdivision (a)(1), provided, in part:

“In compliance with subdivision (b) of [s]ection 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”

Section 1385, subdivision (a) and former subdivision (b) then provided, in part:

“(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. . . .

“(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667.”

After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 1393 (Stats. 2018, ch. 1013, § 1). As of January 1, 2019, section 667, subdivision (a)(1), provides, in pertinent part:

“Any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.”

Former subdivision (b) of section 1385 was deleted (Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019).

In a supplemental brief, defendant asserts Senate Bill No. 1393 applies retroactively to the case and a remand for reconsideration of sentencing is proper. The Attorney General agrees. We accept this concession.

XIII. The case will also be remanded to have the trial court strike the prior prison term enhancements
XIV.
At the time defendant was charged, convicted, and sentenced, section 667.5, former subdivision (b), provided, in part:

“[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of [s]ection 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of [s]ection 1170 or when sentence is not suspended for any felony . . . .”

After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 136 (Stats. 2019, ch. 590, § 1). Effective January 1, 2020, section 667.5, subdivision (b), will provide, in pertinent part:

“[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of [s]ection 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code . . . .”

In a supplemental brief, defendant asserts Senate Bill No. 136 applies retroactively to the case and a remand for resentencing is proper. The Attorney General agrees. We accept this concession. The law will be applicable to defendant, whose appeal will not be final on the law’s effective date.

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded to the trial court with directions to: (1) exercise its sentencing discretion under section 1385, as amended by Senate Bill No. 1393; (2) after January 1, 2020, strike the prior prison term enhancements pursuant to section 667.5, subdivision (b) as amended by Senate Bill No. 136 effective January 1, 2020; (3) resentence defendant accordingly; and (4) prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

SMITH, J.