P. v. Arbulu

Filed 6/14/07 P. v. Arbulu CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

INTRODUCTION

Defendant and appellant Italo Arbulu appeals the convictions and sentence imposed following a jury trial on charges of child molestation and other sexual offenses against multiple minor victims. As explained below, we shall remand for amendment of the abstract of judgment in one particular and shall affirm the judgment in all other respects. The facts of the underlying offenses shall be discussed only as necessary to resolve the issues raised.

BACKGROUND

Appellant was a youth soccer and track coach in San Mateo County. On May 7, 2004, appellant was arrested at his home on charges of child molestation after the parents of one of the boys he coached complained to the police. Following appellants arrest, other victims came forward. On September 3, 2004, an information was filed charging appellant on 28 counts of sexual offenses against John Does 1 through 6.

During an interview on March 23, 2005, one of the victims, John Doe 3, informed the investigating officer the inappropriate touching against him occurred in October 2001, when he was 14-years old, not October 2000 as he initially reported to police. Based on this revelation and an attendant statute of limitations problem, the People moved to dismiss the two counts against appellant which described offenses against John Doe 3 and file an amended information. At the same time, the People moved to admit the testimony of John Doe 3 pursuant to Evidence Code section 1108 (section 1108).[1] The People also moved to admit evidence of other uncharged conduct pursuant to section 1108 by way of testimony from John Doe 7 concerning an incident at Lake Tahoe involving appellant. Defense counsel objected to the admission of the section 1108 testimony as a violation of appellants rights under the Sixth Amendment, and as irrelevant. The trial court ordered the amended information filed and granted the Peoples motion to admit evidence of uncharged sexual offenses against John Doe 3 and John Doe 7. The amended information filed on April 26, 2005, charged appellant as follows:

As to each count, it was further alleged as to appellant that the offense is a serious felony within the meaning of section 1192.7, subdivision (c)(6). As to counts 9, 10, 11, 12 and 13, it was further alleged as to appellant that in the commission of the offense the victim was under the age of 14-years and appellant had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8). In addition, it was alleged appellant committed an offense specified in section 667.61, subdivision (c) against more than one victim, in violation of section 667.61, subdivision (e)(5).

Presentation of evidence to the jury began on April 26, 2005, with the testimony of Jackie W., mother of John Doe 2. The jury returned its verdict on May 5, 2005, and found appellant guilty on all counts. The jury also found all allegations to be true.

After the jury retired for its deliberations but before it returned its verdict, the parties took up the matter of submitting factors in aggravation to the jury pursuant to Blakely.[3] The prosecutor stated that in the event of a guilty conviction on any of the counts, she wished to submit for jury findings three factors in aggravation as to each victim, namely: the victim was vulnerable; appellant took advantage of a position of trust; and the way the crime was committed indicated planning, sophistication, and professionalism. Over the objection of defense counsel, the trial court intimated it would conduct a mini-trial post-verdict to satisfy Blakelys requirement that a jury find any factors in aggravation. Defense counsel objected to the trial courts proposed Blakely procedure. Counsel argued the procedures violated appellants rights under the due process clause of the federal and state Constitutions because factors in aggravation should have been pleaded in the information and appellant was denied his right to a preliminary hearing on such factors. Defense counsel also objected to the prosecutions proposed instruction because it did not define planning, sophistication or professionalism. Further, defense counsel stated he intended to present expert testimony on the issues of victim vulnerability and planning, sophistication or professionalism. Counsel requested a continuance of at least a week in order to have witnesses available to put on.

The trial court ruled it would conduct a Blakely hearing/trial with this jury based on the state of the evidence that has been presented to this jury, and the defendants motion for a continuance is denied. At the Blakely proceeding, counsel made opening and closing statements to the jury but no additional evidence was presented to the jury. On May 6, 2005, the jury reached a unanimous verdict on some of the factors in aggravation. As to all victims, viz., John Doe 1, John Doe 2, John Doe 4, John Doe 5, and John Doe 6, the jury found appellant took advantage of a position of trust. The jury also found the manner in which the crime was carried out indicates planning, sophistication or professionalism, as it related to John Doe 1, John Doe 2, John Doe 4, and John Doe 5. In addition, the jury found the victim, John Doe 5, was particularly vulnerable. The jury deadlocked on the other factors in aggravation, and the trial court declared a mistrial on those allegations.

At the sentencing hearing on September 2, 2005, the trial court found appellant ineligible for probation pursuant to section 1203.066, subdivision (a)(8). Pursuant to section 667.61, subdivision (b), the trial court imposed mandatory sentences of 15-years-to-life on counts 1, 2, 6, 9, 10, 11, 12, 18, 19, 24, 25 and 26. The court imposed these sentences consecutively for a total sentence of 180-years to life. The court reasoned: Based on a violation of a position of trust by the defendant, the court views a consecutive sentence as just and appropriate given the defendants conduct and the age and relationship the defendant had with each of the victims. On the remaining counts, viz., counts 3, 4, 5, 7, 8, 13, 14, 15, 16, 17, 20, 21, 22 and 23, the court imposed concurrent aggravated terms of eight years based on the vulnerability of the victims. Appellant filed a timely notice of appeal on September 7, 2005.

DISCUSSION

I

A. Counts 2-4 (John Doe 1) and Counts 25-26 (John Doe 6)

Appellant contends his convictions for lewd and lascivious behavior on counts 2, 3 and 4 as to John Doe 1, and counts 25 and 26 as to John Doe 6, are supported by insufficient evidence because the prosecution proved the intent element of those crimes by means of propensity evidence. Appellant avers his conviction on these counts on insufficient evidence violates the due process clause of the Fourteenth Amendment to the United States Constitution.

 To determine [the validity of a claim of insufficient] evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. [Citations.] [Citation.] If we determine that a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15 of the California Constitution [citation]. (People v. Memro (1995) 11 Cal.4th 786, 861.)

The prosecutor argued the elements of the contested child molestation counts as to John Doe 1 could be satisfied as follows: count 2 by appellants act of kissing John Doe 1s bare buttocks while giving him a massage; count 3 by appellants act of touching John Doe 1s penis with the side of his hand in order to move it away from the area appellant was massaging (John Doe 1s right hip) while John Doe 1 lay naked on appellants bed; and count 4 by appellants act of dropping his hand onto John Doe 1s crotch while John Doe 1 massaged appellants arm. The prosecutor argued the elements of the contested child molestation counts as to John Doe 6 (counts 25 and 26) could be satisfied by appellants acts of grabbing John Doe 6 in the area of the crotch or buttocks more than once over a two-year period.[4]

Appellant contends there was insufficient evidence of specific intent as to counts 2, 3 and 4 because the behavior described by the prosecutor was not inherently sexual and there was no other non-propensity evidence that it was. Similarly, appellant contends there was insufficient evidence of specific intent as to counts 25 and 26 because [t]hese were quick actions and did not involve any rubbing or fondling and because the victim John Doe 6 opined appellant was only joking around and did not believe he had been molested. Thus, appellant argues, the only evidence of specific intent as to counts 25 and 26 was propensity evidence.

Appellants contention is wholly without merit. [T]he gist of [a section 288] offense has always been the defendants intent to sexually exploit a child, not the nature of the offending act. (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) In other words, whether behavior falls within or without the protective purposes of section 288 depends upon the actors motivation, innocent or sexual, . . . [and] the only way to determine whether a particular touching is permitted or prohibited is by reference to the actors intent as inferred from all the circumstances. (Id. at p. 450.) Indeed, it is well-established that section 288 prohibits all forms of sexually motivated contact with an underage child. (Id. at p. 444.) To complete the offense, a touching of the victim is required, and [] sexual gratification must be presently intended at the time such touching occurs. [Citations.] (Ibid.) The criminal intent required for a violation of section 288 is the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the victim. ( 288, subd. (a).)

 The intent with which the act is done is manifested by the circumstances under which the act is committed. ([Pen. Code,]  21.) Each case involving a lewd act must be decided on its own facts. [Citation.] (In re Paul C. (1990) 221 Cal.App.3d 43, 54.) In determining intent,  the trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent. [Citations.] Other relevant factors can include the defendants extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victims cooperation or to avoid detection [citation]. (Martinez, supra, 11 Cal.4th at p. 445.)

Appellants contention is baseless when viewed against these principles. First, and contrary to appellants assertion, the jury was entitled to infer specific intent from the propensity evidence of uncharged conduct presented by the other victims, John Doe 7 and John Doe 3. But we need not rely on propensity evidence for sufficiency. There was plenty of evidence relevant to specific intent in the other acts of lewd conduct admitted or charged in the case (Martinez, supra, 11 Cal.4th at p. 445), including charges of sodomy, oral copulation, and masturbation of a child under 14-years old with respect to John Doe 2 and John Doe 5. In the light of these other offenses, the jury was entitled to reject John Doe 6s opinion appellant grabbed John Doe 6s buttocks and crotch in fun and to infer instead appellant did so with the specific intent required under section 288. The same could also be said regarding specific intent as to counts two, three and fourthe child molestation offenses against John Doe 1. But there is more evidence of specific intent as to those counts than just the other acts of lewd conduct charged in the case.

John Doe 1 testified that when he was12-years old he joined the track club where appellant was coach. Sometimes appellant would drive John Doe 1 to and from practice if John Doe 1s parents were unavailable. John Doe 1 stated appellant introduced John Doe 1 to his daughter, who is John Doe 1s age, and they became friends. Appellant befriended John Doe 1s family and went to John Doe 1s house for dinner. John Doe 1s parents also invited appellant out for dinner with them and on such occasions appellant would bring his daughter. John Doe 1 ran at two race meets on April 2 and 23rd, 2004, in Los Gatos and appellant picked him up after school to take him to those meets.

After each of these track meets appellant suggested John Doe 1 sleep over at his house so appellant would not have to drive John Doe 1 home late at night. John Doe 1 said he thought appellant was really cool and we were friends so he was fine with the idea of a sleepover. On the first sleepover, John Doe 1 offered to sleep on the floor, but appellant said he should sleep on the bed, saying Well make it fit. Appellants daughter, appellant and John Doe 1 all slept on the same bed with appellant in the middle. John Doe 1 was kind of nervous but trusted appellant. John Doe 1 was lying with his back to appellant and appellant put his left arm around his upper body and put his leg over John Doe 1s legs; the front of appellants body was pressed up against the back of John Doe 1s body. Appellant told John Doe 1 he loved him. John Doe 1 was scared and nervous but didnt know what to do. John Doe 1 didnt sleep until after appellant got up around 2 a.m. to go to work at Whole Foods, and when appellant later returned he told John Doe 1 not to tell anyone about [his] house or that you slept over or anything.

The track meet on April 23, 2004, also finished late and appellant again called John Doe 1s parents to ask if John Doe 1 could sleep over. John Doe 1 testified he was sort of hesitant but kind of went along with it. This time both appellants daughter and stepson were present, but at bedtime they went off to sleep in the master bedroom upstairs. John Doe 1 said he became really scared and nervous when he realized he had to sleep in the small bedroom with, and on the same bed as, appellant. John Doe 1 told appellant he wanted to go home, and began crying, but all appellant said was, Oh I thought you were more mature than this. John Doe 1 decided to stay after appellant said he wouldnt do anything to me and it would be okay and stuff. Then appellant offered to give John Doe 1 a massage because John Doe 1 had a right hip flexor injury. John Doe 1 refused at first but appellant said massage helps athletes recover from injury. At this, John Doe 1 agreed to the massage and appellant told him to take off his clothes and lie down on the bed.

John Doe 1 took off all his clothes except his boxers. Using a massage oil, appellant massaged John Doe 1s back and legs. Appellant asked John Doe 1 to take his boxers off but John Doe 1 refused. Appellant insisted, asking John Doe 1 how he was supposed to massage him with his boxers on, so John Doe 1 took them off. Appellant then massaged John Doe 1s bare buttocks. At one point, appellant quickly kissed John Doe 1 on the buttocks. Then appellant told John Doe 1 to turn over so he could massage his hip flexor. As John Doe 1 lay on his back, appellant moved John Doe 1s penis aside with the back of his hand and began massaging his right hip. Appellant also massaged John Doe 1s chest. Appellant asked John Doe 1 if he didnt feel like he wanted to come all over himself. John Doe 1 got dressed again after the massage, and after watching some TV appellant called John Doe 1 to bed. John Doe 1 lay down with his back to appellant and appellant put his arm and leg around him and was hugging him really close. Next morning appellant told John Doe 1 not to tell anybody what happened the night before.

John Doe 1 also testified appellant showed him how to massage appellants arm; they would sit down with knees pointing towards each other and appellant would place his arm on John Doe 1s lap. One time during such an arm massage, appellant dropped his hand onto John Doe 1s crotch, right on top of his penis, and said he [appellant] was going to wet himself.

The last incident of molestation took place when John Doe 1s parents invited appellant and his daughter to John Doe 1s brothers birthday party. John Doe 1 was in the hot tub with his two brothers, appellant and appellants daughter; John Doe 1 started to get out of the tub when all the other children were leaving but appellant said No, stay here. I need to talk to you. Appellant put his arm around John Doe 1s lower back and began to rub his thigh, so John Doe 1 moved to the other side of the hot tub. Appellant asked John Doe 1 if he wanted to do it with him and I said no. He told me, Oh come on. It wont make you a fag and nobody would know. Later that night John Doe 1 told his mother everything that had happened.

From these circumstances, the jury was entitled to infer appellants touching of his young victim John Doe 1 was sexual, not innocent. Appellant used his position as John Doe 1s track coach to befriend John Doe 1s family and gain John Doe 1s and his parents trust. (Martinez, supra, 11 Cal.4th at p. 445 [the jury may consider the relationship of the parties in determining intent].) Moreover, appellant cunningly and deceitfully encouraged the friendship between John Doe 1 and his daughter which doubtless made a sleepover seem all the more innocent in the eyes of John Doe 1s unsuspecting parents. Appellant was deceitful too in engineering the sleepovers so that his daughter was present on the first, but not the second occasion, leaving John Doe 1 alone with appellant in his bedroom and no one to observe what took place. Appellant was also deceitful in using massage as a means to get John Doe 1 to take off all his clothes, and in telling John Doe 1 not to tell anyone what happened on the sleepovers. All these deceitful actions support an inference appellants actions were sexual in nature. (Ibid. [deceit used to obtain the victims cooperation or to avoid detection is relevant to intent].) Furthermore, appellants statements to John Doe 1 about whether John Doe 1 felt like coming all over himself, about appellant going to wet himself and doing it without anyone knowing, all support the inference appellants actions were sexual rather than innocent. (Ibid. [extrajudicial statements are relevant to intent]). In sum, we have no difficulty in rejecting appellants sufficiency-of-the-evidence claim on counts 2, 3, 4, 25 and 26.

B. Count 9 (John Doe 2)

Appellant was convicted of eleven offenses against John Doe 2five counts of child molestation involving masturbation, four other counts of child molestation, one count of oral copulation and one count of sodomy. Appellant asserts one of the molestation counts involving masturbation, count nine, must be reversed because the prosecutor did not prove John Doe 2 slept over at appellants house on five rather than four occasions.

However, the dispositive factor for purposes of appellants sufficiency of the evidence claim is not the number of sleepovers but the number of acts of masturbation appellant engaged in with John Doe 2. (People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [where the defendant touched victims vagina and rubbed the area around it, both over and under the victims clothes, the defendant was subject to multiple convictions for the one sleep-over incident].)

John Doe 2 testified about what happened on different occasions when he slept over at appellants house. On the first occasion John Doe 2 intended to sleep in appellants stepsons room but appellant told John Doe 2 to sleep in his room and it would be fine. John Doe 2 thought this was kind of strange but had no reason to question it. John Doe 2 grabbed a pillow off the bed and made an effort to sleep on the floor but appellant said it would be fine if he slept in the bed with him. John Doe 2 was wearing a T-shirt and boxers. Appellant moved over to John Doe 2s side of the bed and started to massage his shoulders and back. John Doe 2 got scared and tense but didnt know what to do. Appellant took or told John Doe 2 to take off his T-shirt and then got a bottle of oil, rubbed some between his hands, and began to massage John Doe 2. John Doe 2 was lying on his stomach at this point. Appellant started working his way down to John Doe 2s buttocks and legs. Appellant reached inside John Doe 2s boxers and began massaging the bare skin. Appellant pulled down John Doe 2s boxers, continued massaging, then reached under John Doe 2s hip and started fondling his penis. John Doe 2 said appellant then flipped me over and started to masturbate him. John Doe 2 had not had a sexual experience before and had never masturbated so he was confused and scared. Appellant masturbated John Doe 2 to climax and then John Doe 2 asked him loudly to stop. Appellant laughed as he lay on his back, masturbated himself, and ejaculated on his stomach. Next morning, John Doe 2 got dressed and went downstairs and appellant told him not to tell anyone what had happened.

Appellant invited John Doe 2 over a second time John Doe 2 said he was scared but thought it would be different and wouldnt happen again. When it was time to go to bed, appellant just led John Doe 2 to his room and told him to take his clothes off. Appellant started touching John Doe 2s penis and masturbated him. Appellant then took John Doe 2s hand and put it on appellants penis. Thereafter, appellant masturbated himself and ejaculated.

John Doe 2 described a third occasion. After appellant took John Doe 2 into his bedroom, appellant touched John Doe 2s penis and masturbated him. Appellant then put his mouth on John Doe 2s penis and gave him fellatio for about a minute. John Doe 2 asked him to stop. Appellant stopped then laughed. John Doe 2 said he stayed at appellants house four or five times and remembers the last time was early November because he saw smashed pumpkins on the street on the way home next morning. On this occasion, appellant told John Doe 2 to take his clothes off once they were in the bedroom. John Doe 2 got into bed and laid facing away from appellant. Appellant fondled John Doe 2s penis and masturbated him. John Doe 2 told him to leave him alone so he could go to sleep. Appellant came behind him, spread his buttocks and put his penis in John Doe 2s anus. John Doe 2 said it was excruciatingly painful; John Doe 2 begged him to stop. Appellant pulled his penis out and laughed. John Doe 2 testified that on several other occasions appellant had rubbed his penis against John Doe 2s legs and up against his buttocks. Appellant told John Doe 2 that John Doe 2s mother and the other coach on the team were nosey and not to mention hed been at appellants house.

John Doe 2s testimony evidences five acts of masturbation. Accordingly, we reject appellants insufficiency of the evidence claims regarding count nine.

II

A. Section 1108 Testimony

1. John Doe 3

John Doe 3s date of birth is November 1986. John Doe 3 turned 15-years old during the fall of his freshman high school year. John Doe 3 met appellant as a freshman at high school where appellant was his track coach. John Doe 3 was also friends with appellants stepson. Appellant called John Doe 3 by cell phone and invited him to go to the movies with appellant and appellants stepson. John Doe 3s parents gave him permission to go, so John Doe 3 took the train to Millbrae where appellant picked him up. Appellants stepson was not in appellants car, and appellant immediately explained his stepson couldnt make it because something had come up. John Doe 3 went to the movie with appellant and nothing unusual happened. On the way back, appellant told John Doe 3 he should not mention to his parents that appellants stepson wasnt with them at the movies.

Subsequently, John Doe 3 received an invitation from either appellant or appellants stepson to accompany them and appellants daughter to a soccer tournament in Fresno. John Doe 3 went with his parents permission. On the Saturday, after appellants stepsons team had played a few games, appellant gave some of the players a massage. Later that night, appellant set up a massage table in the hotel room and gave his daughter a massage. When appellant offered to give John Doe 3 a massage too, he accepted. John Doe 3 laid face-down on the massage table with only his boxer shorts on. Appellant massaged John Doe 3s back, thighs, and buttocks. John Doe 3 said this felt fairly normal till appellant walked around the table, looked down at him, said he had a nice body and chomped his teeth together. Appellant told John Doe 3 he (John Doe 3) probably had only two or three percent body fat because he was really small. Appellant said his stepson and daughter were both asleep on one of the beds at this point, and the massage was taking a long time. After the massage, John Doe 3 got into the other bed, pretty close to the edge of the bed facing away from appellant. John Doe 3 and appellant were wearing only boxers or shorts. Appellant lay on the other side of the bed, but after about ten minutes John Doe 3 said he scooted next to me and put his leg on my side. Appellants penis rubbed on John Doe 3s buttocks, but John Doe 3 was not sure if appellant had an erection. Appellant draped his arm over John Doe 3 and said, Lets have some fun. John Doe 3 knew what appellant meant, but played dumb by asking if they were going mini-golfing the next day. Appellant said, Thats not what I mean. John Doe 3 said, No, got out of the bed and slept on the floor.

Next morning, the atmosphere in the room was awkward and tense. At one point, when appellants stepson was at breakfast and his daughter was in the shower (or vice versa), appellant said to John Doe 3, You look at me like Im a monster, but you are the monster and you are just trying to make me feel guilty. Two or three days later, appellant encountered John Doe 3 in the locker room at high school. Appellant asked John Doe 3 if he had done anything if he had done something wrong, what are his chances of getting with me, and he asked me like what I could have done different or what he could have done different. Subsequently, John Doe 3 quit track because he did not want to be around appellant any more.

2. John Doe 7

John Doe 7s date of birth is August 1986. John Doe 7 testified appellant was his soccer coach in his freshman year at high school during fall 2000. At the end of the soccer season, around December 2000 or January 2001, appellant invited John Doe 7 to go snowboarding with him at appellants expense. Appellant told John Doe 7 they would go up to Tahoe with appellants stepson, where they would meet up with appellants ex-wife and his daughter. John Doe 7s parents gave their permission for him to go. After they arrived in Tahoe and checked into the hotel room, appellant told John Doe 7 that his stepson couldnt make it up to Tahoe after all. There were two beds in the room and that night John Doe 7 slept in one and appellant slept in the other. The next day appellant rented snowboards and they went snowboarding. John Doe 7 had never snowboarded before so he fell a lot, bruised his wrist badly, and ended up pretty sore all over. After snowboarding, appellant took John Doe 7 to see his ex-wife who examined his wrist. Appellants daughter was with her mother. Appellant and John Doe 7 spent about 30 minutes with appellants daughter and ex-wife before going back to their room.

Appellant and John Doe 7 were watching a movie. John Doe 7 complained he was sore all over. Appellant offered to give him a massage, and John Doe 7 agreed. Appellant told John Doe 7 to get more comfortable so John Doe 7 took off his shirt, lay on his front and continued to watch the movie. Appellant started massaging John Doe 7s back, then he started to go a little bit lower. John Doe 7 began to feel nervous and uncomfortable. Before reaching John Doe 7s buttocks, appellant said, Is this okay? and John Doe 7 replied, Not really. Appellant stopped, but then said, If I wanted to, I could have grabbed your balls. John Doe 7 said the atmosphere just kind of got eery [sic] because he didnt know what was going on and I [didnt] know what really to say. After John Doe 7 showered and got into bed, appellant asked if he could come into John Doe 7s bed. John Doe 7 refused, and nothing else happened. John Doe 7 also testified that after the massage episode appellant told him a story about another guy hed brought up to Tahoe. Appellant told John Doe 7 hed walked in on his friend while his friend was taking a shower. Appellant said he noticed his friend had an erection but appellant didnt mind it and wasnt bothered by it.

B. Discussion & Analysis

Appellant asserts the trial court improperly admitted over his objection the testimony of John Doe 3 and John Doe 7 pursuant to Evidence Code section 1108 (section 1108). Specifically, appellant contends: (1) the propensity evidence was more prejudicial than probative under Evidence Code section 352 (section 352); (2) admission of the prior act evidence deprived him of due process of law; and, (3) assuming error of a constitutional magnitude, the admission of the improper prior act evidence was not harmless beyond a reasonable doubt.

In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the Supreme Court rejected a due process challenge to section 1108. The court reasoned the trial courts discretion to exclude propensity evidence under section 352 saves section 1108 from defendants due process challenge[] because the trial courts discretion in that regard provides a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. (Id. at 917.)[5] In light of Falsetta, supra, we reject appellants contention he was denied due process by the admission of section 1108 evidence.

We turn to appellants section 352 claim. In the careful weighing process under section 352 required before the admission of section 1108 evidence, trial courts must examine such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (Falsetta, supra, 21 Cal.4th at pp. 916-917.)

Moreover, as the court recognized in Falsetta, supra, the probative value of other crimes evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] (Falsetta, supra, 21 Cal.4th at p. 917.) These factors apply here. The events described by John Doe 3 bear all the hallmarks of appellants modus operandi against his other victimsusing his position as coach to befriend young boys, initiating social contacts with the youngsters outside of the coaching arena, using the friendships between his stepson and daughter and the youngsters to further his social contact with the boys, manipulating social and sleeping arrangements so the target is left alone with appellant, using massage as a means to have the boys undress and touch them, using sexual innuendo in his communications with the boys, and, when rebuffed, moving onto another victim. Thus, the probative value of John Doe 3s and John Doe 7s testimony was significant.

On the other hand, the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jurys attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) Here, although the uncharged offenses had not resulted in actual convictions and a prison term, their prejudicial effect was lessened by the fact that appellants offenses against John Doe 3 and John Doe 7 were not so egregious as his offenses of sodomy against John Doe 2 and John Doe 5, and therefore were unlikely to further inflame the jury into convicting him solely to punish him for the uncharged conduct. Nor was the jurys attention unduly diverted into a separate determination whether defendant committed the other offenses. Appellant did not seriously dispute the events described by John Doe 3 and John Doe 7 took placehis response (and defense to many of the molestation charges) was his intentions, as well as any touching involved, were innocent. Furthermore, other factors favored admission of the section 1108 testimony the experiences of John Doe 3 and John Doe 7 were within the same time-frame as appellants offenses against other victims, so the evidence was neither remote nor stale; as noted, appellant did not seriously contest the events took place; and the trial court admitt[ed] some but not all of the [appellants] other sex offenses because it excluded the proffered section 1108 testimony of another victim, David C., as remote and cumulative to the section 1108 testimony of John Doe 3 and John Doe 7. (Falsetta, supra, 21 Cal.4th at p. 917.) In sum, we conclude the trial court did not abuse its discretion in finding the balance of Falsetta factors favored the admission of John Doe 3s and John Doe 7s section 1108 testimony.[6]

III

Appellant argues the judgment must be reversed for instructional error. Specifically, appellant contends CALJIC No. 2.50.01 (Evidence of Other Sexual Offenses)[7], CALJIC No. 2.50.1 (Evidence of Other Crimes by Defendant Proved by a Preponderance of the Evidence)[8], and CALJIC No. 2.50.2 (Definition of Preponderance of the Evidence)[9] together deprived him of due process of law because they allowed him to be convicted, at least in part, on evidence proven by a preponderance of the evidence.

Appellants argument is foreclosed by People v. Reliford (2003) 29 Cal.4th 1007 (Reliford). In Reliford, the Supreme Court concluded the 1999 version of CALJIC 2.50.01 (Evidence of Other Sexual Offenses) contains language appropriate for cases involving the admission of disposition evidence [citation]. . . [and] adequately sets forth the controlling principles under section 1108. [Citation.] (Reliford, supra, 29 Cal.4th at p. 1009.) In so holding, the court rejected the argument CALJIC 2.50.01 allowed the jury to convict on a standard of proof lower than beyond a reasonable doubt, stating: Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense in 1991. (Id. at p. 1016.) The court noted [t]he instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty beyond a reasonable doubt  and [a]ny other reading would have rendered the reference to reasonable doubt a nullity. (Id. at p. 1016.) Here too, as in Reliford, CALJIC 2.50.01 told the jury the preponderance standard applied only to other sexual offenses, not to the charged offenses. Here too, as in Reliford, the jury was instructed via CALJIC 2.61, CALJIC 2.90 and CALJIC 10.64, that, in all other respects, the People had the burden of proving defendant guilty beyond a reasonable doubt. (Ibid.)

However, the court also added: Although we find no constitutional error in the 1999 version of the instruction, we nonetheless recognize it could be improved. The 2002 revision to CALJIC No. 2.50.01 deletes the sentence, The weight and significance of the evidence, if any, are for you to decide and inserts an additional cautionary statement: If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. . . . [W]e think the new sentence is an improvement. It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses. (Reliford, supra, 29 Cal.4th at p. 1016.) Here, the jury was instructed with CALJIC 2.50.01 containing the new sentence the Supreme Court opined was an improvement on the already legally sufficient 1999 version of CALJIC 2.50.01, which only adds to the paucity of appellants contention. In sum, we reject appellants claim of instructional error.[10]

IV

Appellant claims the trial court erred and denied him due process of law by permitting the prosecutor at the close of evidence to amend the information to expand the time frame within which appellant committed the offenses alleged in counts 18 and 19.

A. Background

The amended information alleged the offenses against John Doe 4 took place between July 1, 1998, and June 30, 1999. John Doe 4 testified he was born in July 1987, and at the time of trial he was 17-years old and in 12th Grade. John Doe 4 also testified the offenses took place during sleepovers at appellants house during his sixth grade. On cross-examination, however, John Doe 4 agreed the sleepovers could have been during either his sixth or seventh grade, meaning the offenses could have taken place between September 1999 and June 2000, when John Doe 4 was in seventh grade. Thereafter, at the close of the prosecution case, the trial court asked the prosecutor: Do you have amendments? The prosecutor was about to propose her amendments when the trial court interjected by asking if she wish[ed] to wait until the end of the defense case? The prosecutor said she would rather do that because theres more evidence that will be coming in. Defense counsel agreed, stating: I thought we agreed we would do it at the end of the case. Thats fine.

Subsequently, after the defense rested but before the trial court instructed the jury, the prosecutor moved to amend counts 18 and 19 by extending by one year the period within which the offenses were alleged to have been committed. Defense counsel objected for lack of notice. The trial court overruled defense counsels objection and allowed the amendment, stating: I do not believe that by expanding it from June 30, [19]99, to June 30, 2000 prejudices the defendant. I think it accurately conforms to proof.

B. Discussion & Analysis

Penal Code section 1009 authorizes amendment of an information at any state of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. [Citations.] However, . . . the questions of whether the prosecution should be permitted to amend the information and whether continuance in a concrete case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of showing a clear abuse of discretion. [Citations.] In accordance with these principles, it has been held to be a correct exercise of discretion to allow an amendment of an information to properly state the offense at the conclusion of the trial. [Citations.] Similarly, it has been said that where the amendment made no substantial change in the offense charged and required no additional preparation or evidence to meet the change, the denial of continuance was justified and proper. [Citations.] (People v. George (1980) 109 Cal.App.3d 814, 818-819.)

The trial courts decision here comports with these principles. To start with, it is clear that the amendment did not change the offense charged in the original information. Indeed, the amendment did not alter the nature of the charge at all, but merely extended forwards the time-period within which the offense was committed. (It would be a different case if, for example, the amendment had extended the time-period backwards and thereby deprived appellant the opportunity of asserting a statute of limitations defense.) Indeed, appellant acknowledges an amendment may be allowed if it involves a minor change in the pleaded date of the offense which had no effect on the defense offered.

Nonetheless, appellant asserts he was prejudiced by the amendment because it changed the case in a way that made the entire defense irrelevant. As we read the record, the defense strategy was to concede the most egregious offense (sodomy) and suggest the conduct underlying the child molestations charges was more likely than not innocent rather than sexual. We fail to see how such a defense strategy was prejudiced in any way by an amendment to conform to proof the time-frame of offenses alleged in counts 18 and 19. Appellant made no offer of proof in the trial court that he could present a potential defense to the charges, such as alibi, given the time-frame within which the offenses were committed was extended by one year. Appellants failure to even request a continuance also suggests he had no such new or viable defense to offer. Even here on appeal, all appellant offers is a bald assertion that his defense was rendered irrelevant but he offers no explanation of why that is so. Accordingly, we conclude the trial court did not abuse its discretion in granting the amendment.[11]

V

Appellant asserts the trial court erred by admitting fresh-complaint evidence in the form of testimony by the mothers of several of the victims. Furthermore, appellant asserts the erroneous admission of this evidence prejudiced him under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 [erroneous admission of evidence prejudicial where it is reasonably probable a result more favorable to defendant would have occurred in the absence of error].)

A. Fresh-Complaint Evidence

Jackie W., mother of John Doe 2, testified she lived in San Mateo County most of her life but moved out of the area in July 2001. Jackie said she was surprised her son was so happy and enthusiastic about moving away from the area. In May 2004, Jackie received a call from her former husband telling her appellant had been arrested on charges of child molestation and asked her to talk to their son because John Doe 2 had spent some time at appellants house. When Jackie brought the matter up with John Doe 2 later in the evening, she could tell immediately by his reaction something was wrong. John Doe 2 said to his mother, It happened to me. Jackie asked John Doe 2 what he meant. John Doe 2 replied: He had sex with me. Jackie testified John Doe 2 was embarrassed at first by this admission but the more they talked the more tearful and upset he became. Subsequently, Jackie called her ex-husband back, and he reported the matter to the police.

Carole D., mother of John Doe 6, testified appellant was John Doe 6s soccer coach. Carole became friends with appellant through this soccer connection. Carole testified that on May 7, 2004, she received a phone call from appellant, who told her he had been arrested for lewd and lascivious conduct with a minor. Appellant asked Carole to contact his friend about finding an attorney. Carole started thinking about John Doe 6 because he had spent time alone with appellant. She spoke to John Doe 6 that night and asked him if appellant had ever behaved inappropriately with him. Carole stated: He said yes. No hesitation. He said yes.

Asked if John Doe 6 expounded upon that any further, Carole stated: He answered my questions only. He was reluctant to give me details. But you know, I asked him what had happened and he said nothing happened. And I said, Well, did he . . . touch you or did he make you touch him? And he said no. And I said, you know I was trying to get details and he just said kept trying to calm me down and saying nothing happened. And I said, Did he say something to you? And he said, Yeah, but, you know, I just he said, I just, you know, told him he was being stupid or I accused him of being gay and so he stopped. The prosecutor asked Carole if John Doe 6 ever told her what it was that was inappropriate, but withdrew the question upon objection by defense counsel.

Kathleen R., mother of John Doe 1, testified she met appell