People v. Rosas CA5

[[COURTLISTENER_SUBOPINION {"id":"11124791","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Filed 8/21/25 P. v. Rosas 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                             F087745
           Plaintiff and Respondent,
                                                                              (Super. Ct. No. MCR078784)
                    v.

 VICTOR ROJAS ROSAS,                                                                      OPINION
           Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Jesica Gonzalez,
Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant Victor Rojas Rosas sexually abused his girlfriend’s daughter, A. Doe,
over a period of three years starting when she was about seven years old. Defendant was
convicted of sexual intercourse or sodomy with a child (Pen. Code, § 288.7, subd. (a)),1
and continuous sexual abuse of a child (§ 288.5, subd. (a)). The trial court sentenced
defendant to an aggregate indeterminate term of 100 years to life for the discrete sex
offenses. A 12-year prison term was imposed and stayed for the continuous sexual abuse
conviction.
       On appeal, defendant contends (1) he received ineffective assistance of counsel for
his attorney’s failure to object to admission of Doe’s forensic interview at trial, (2) his
convictions for the discrete sex offenses and continuous sexual abuse against a single
victim during an overlapping period violate section 288.5, subdivision (c), (3) the matter
must be remanded for the trial court to determine which counts to vacate, and (4) if the
section 288.5 conviction is vacated on appeal, the fine under section 294, subdivision (a)
for that conviction must be vacated.
       The People respond that defendant did not receive ineffective assistance of counsel
because he cannot show deficient performance or prejudice resulting from admission of
Doe’s forensic interview. The People agree multiple convictions for the discrete sex
offenses and continuous sexual abuse are improper but argue the proper remedy is to
reverse the section 288.5 conviction and vacate the related fine.
       We agree defendant was improperly convicted of overlapping discrete sex offenses
and continuous sexual abuse in violation of section 288.5, subdivision (c). We therefore
vacate both the continuous sexual abuse conviction and related section 294 fine. As
modified, we affirm.
                               PROCEDURAL SUMMARY
       On January 11, 2024, the District Attorney of Madera County filed an amended

1      Undesignated statutory references are to the Penal Code.



                                              2.
information charging defendant with five counts of sexual misconduct against Doe, born
in 2013, including two counts of sexual intercourse with a child 10 years of age or
younger (§ 288.7, subd. (a); counts 1, 2); two counts of sodomy with a child 10 years of
age or younger (§ 288.7, subd. (a); counts 3, 4); and one count of continuous sexual abuse
of a child under the age of 14 years (§ 288.5, subd. (a); count 5). All five counts were
alleged to have occurred between January 4, 2020, and August 30, 2023.2 Defendant was
born in February 1984 and was between the ages of 35 and 39 during this period. The
information alleged two aggravating circumstances: defendant took advantage of a
position of trust or confidence (Cal Rules of Court, rule 4.421(a)(11)); and the victim was
particularly vulnerable (Cal Rules of Court, rule 4.421(a)(3)).
       On February 7, 2024, the jury found defendant guilty on all five counts. After the
verdict, the trial court granted the prosecutor’s motion to dismiss the two alleged
aggravating circumstances.
       On March 11, 2024, the trial court sentenced defendant to 100 years to life in
prison, consisting of four consecutive 25-year-to-life terms on counts 1 to 4. The court
imposed and stayed pursuant to section 654 a 12-year term on count 5. The court also
ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended
parole revocation restitution fine (§ 1202.45), a $1,170 fine (§ 672), a $1,230 fine
(§ 290.3), and an $820 fine (§ 294, subd (a)).
       Defendant filed a timely notice of appeal.
                                  FACTUAL SUMMARY
       Relationship Between Doe’s Mother and Defendant
       Celia A., Doe’s mother, met and began dating defendant when Doe was about
three and a half years old. Celia described her relationship with defendant as “really
bad.” Sometimes defendant was loving, and other times he was aggressive. He was

2      The date range for count 5 was amended during trial as will be further discussed herein.



                                               3.
quick to anger and mad if Celia got off work late or did not answer his calls.
       Celia, defendant, and Doe lived together for about two and a half years in a house
on Avenue 9 in Madera. The house had one bedroom, a living room, and a kitchen. Doe
slept in the bedroom, and Celia and defendant slept in the living room.
       Celia and defendant argued while they lived together, sometimes in front of Doe.
Doe saw defendant yell at Celia. One time, defendant punched Celia in the nose, causing
her to bleed. Doe did not see this happen because she was in the bedroom on her tablet.
Another time, defendant hit Celia in the eye, leaving her with a bruise. Doe was at school
when this happened but saw the bruise later. Celia told Doe Celia was fine, and nothing
had happened.
       Celia worked in fields six days a week, starting at 7:00 a.m. She testified she did
not leave Doe home alone with defendant when they lived together. She took Doe to
school or put her on the bus to school. If Doe was sick, Celia took her to be with her
adult son, Jason A., at his house on Avenue 11.
       In November 2022, Celia and Doe moved into a three-bedroom house on
Avenue 11 in Madera where Celia’s two adult children, Jason and Sulema A., already
lived. Jason and Sulema had their own bedrooms while Celia and Doe shared the third
bedroom. Celia and Doe slept in separate twin beds in their room.
       Defendant did not live at the Avenue 11 house, but he stayed there two or three
times. He shared a bed with Celia at the Avenue 11 house. Celia and defendant slept
naked while Doe was also sleeping in the room in her bed. Though Celia and defendant
had become just friends, they had sex in the room while Doe slept. To Celia’s
knowledge, Doe never accidentally saw defendant naked. Celia had not seen defendant
touch Doe inappropriately or say anything inappropriate to her.
       At one point, Doe asked Celia why defendant was still coming over to the
Avenue 11 house. Around August 2023, Celia returned to the Avenue 11 house from



                                             4.
work and saw defendant jump out of one of the house windows. Celia asked defendant
why he was inside the house because she and defendant were mad at each other at the
time. Defendant did not reply and left. Doe was inside the house in the bedroom she
shared with Celia. Celia asked Doe what defendant was doing there, and Doe replied,
“Nothing.” Jason was also inside the house in his own bedroom.
       Doe Discloses the Abuse
       On August 30, 2023, Doe was attending elementary school and in fifth grade. The
school principal called Doe into her office because Doe had used her tablet to show
another student a pornographic website. Doe was distraught and crying when confronted
by the principal and admitted she had shown another student the website. The principal
asked Doe where she had learned about the website. Doe said her stepfather, “Victor,”
had shown the website to her and told Doe she could show it to others if she wanted.
Based on Doe’s responses, the principal asked Doe if she was safe at home. Doe shook
her head no. The principal asked Doe why she was not safe, and Doe responded, “My
stepfather rapes me.” Doe was still distraught and crying. Pursuant to her training, the
principal ended Doe’s interview and contacted the sheriff’s department.
       After Doe’s report to the principal, Celia was contacted at work. Celia left work
immediately and went to Doe’s school. When Celia arrived, the principal told her what
was happening. Before then, Doe had never told Celia that defendant had done anything
inappropriate to her.
       Madera County Sheriff’s Detective David Ochoa came to Doe’s school in response
to the principal’s call. Ochoa spoke with Celia and asked her to call defendant. The
sheriffs were able to locate and arrest defendant through Celia’s call. Ochoa scheduled a
child forensic interview (CFIT) of Doe for the following day. A social worker with Child
Protective Services also went to Doe’s school and spoke with Doe.
       Sandra Avalos, a forensic interviewer with the Chowchilla Police Department,



                                            5.
conducted the CFIT of Doe on August 31, 2023. Avalos’s interview of Doe was video
recorded. Toward the start of the CFIT, Avalos confirmed Doe understood the difference
between the truth and a lie using a table and a chair.
       Doe told Avalos she showed her friend, a fellow student, some “inappropriate
videos because [the friend] said she was interested in that type of stuff.” Doe was just
curious. She confirmed she showed the friend a video of sex. She said her “father”
showed her this website called X and X-X. Doe said her father told her to “show anyone
that website if they were interested in that type of stuff.” She identified her father as
“Victor.” He showed sex videos to Doe on his phone in the bedroom Doe and her mother
shared. Doe said they would just sit and watch the videos together. There were multiple
males and multiple females together in the videos.
       Doe told Avalos there was “some other stuff,” but she didn’t want to go into it
because it made her uncomfortable. Avalos suggested Doe write it down. Doe wrote,
“[H]e would rape me.” When asked when this happened, Doe said, “A few years ago.”
Avalos calculated this would have been when Doe was seven years old. Doe said the last
time was “[j]ust a few weeks ago.” Doe admitted she forgets easily.
       Avalos asked Doe what “rape” means. Doe explained that rape is when “you’re
having sex with someone that—that is on purpose, and you don’t, uh, that I didn’t give
them permission to.” When asked to describe what sex is, Doe explained sex is
something that “one male and one female do most of the time when they’re adults.”
Avalos asked Doe if she and defendant had sex. Doe responded it made her feel
uncomfortable because she never “had it before” and is still a child. She said this
happened mostly on the ground in the room Doe shared with her mom. Doe was unsure
how many times this happened. It only happened when her mother was not at home.
Doe’s brother was at home, but he was always in his room wearing his headphones.
Defendant only stayed at the house when Doe’s sister was away.



                                              6.
       Because Doe was uncomfortable saying which parts of her body defendant had
touched, Avalos brought out a body diagram for Doe to circle the places on her body
defendant had touched. Doe circled the breasts, vagina, back, and buttocks on the
diagram. Doe knew the correct name for “breast” but was unsure of the names for other
body parts besides the back. She told Avalos she did not know the names for private
parts. She said defendant would touch her under her clothes and underwear. Doe
reported defendant touched her many times “inside the area that [she goes] to the
bathroom with.” She said, “It’s called child rape,” and a person could go to jail or prison.
Defendant touched Doe using his “private male part,” and put his part inside Doe’s parts.
Doe said her private parts “got a little bigger” when defendant put his part inside her.
Defendant held Doe’s hands and moved his body around while inside Doe. This hurt and
made Doe feel weird and uncomfortable. Defendant sometimes put his private part
“inside the area where the poop comes out of.” He told Doe not to tell anyone. She
thought defendant did not want her to tell anyone because he did not want to get in “big
trouble” and go to jail or prison. Doe had not told anyone what happened with defendant
until the day before. What happened made Doe’s leg hurt, and she was unable to do
physical education.
       Doe thought defendant was a great father “before all of that happened,” but said he
was terrible after. Doe wanted to hit defendant “a lot” and once hit him when he and her
mom were arguing. She reported being happy defendant was arrested. When asked if
anyone told her what to not tell Avalos, Doe responded, “Yeah. I don’t remember.”
       Ochoa attended the CFIT. He searched the website Doe discussed during the
interview and discovered it was a pornographic website. Ochoa testified that sexual
assault medical examinations are typically done within five days of the last assault.
Because Doe reported the assaults a few weeks after the last assault, the police did not
conduct a medical examination of Doe.



                                             7.
       Doe’s Trial Testimony
       Doe was 11 years old when she testified at trial. She could not remember why she
had to speak with her school principal a few months earlier. She remembered talking to
the principal and crying but could not recall what made her cry. Doe confirmed she got
into trouble for something she was looking at, but denied it was on her tablet and testified
she was using someone else’s phone. She remembered telling the principal that she was
looking at “things” defendant had shown her on his phone. Doe told a friend about the
website, and the friend looked it up on her phone.
       Doe could not remember what defendant showed her on his phone, but it made her
uncomfortable. She was interested in what he showed her because she had not seen
anything like it before. Doe remembered talking to Avalos back in August and telling her
about looking at defendant’s phone, but she did not remember telling Avalos the website’s
name. She thought she remembered seeing videos on the website and telling Avalos the
videos sometimes had a boy and a girl, sometimes more than one boy and more than one
girl. Doe was seven or eight years old when defendant showed her these things on his
phone. He showed Doe these things more than one time.
       Doe testified something happened with defendant more than once that made her
uncomfortable. One time, she and defendant were in the room Doe shared with her
mother. Jason was in the house in his room. Doe could not remember what happened
between her and defendant.
       Doe initially testified she did not remember telling Avalos that defendant touched
her. She felt uncomfortable talking about these things in front of the jury. Doe then
confirmed she told Avalos that defendant touched her breast. She said defendant touched
her breast with his hand more than one time, but she could not remember where they
were when this happened. Doe said defendant had touched her in the places on the
diagram where she had circled parts of the body. She thought she was younger than



                                             8.
10 years old the first time defendant touched her. Doe said defendant had touched her
more than once at her current house and her previous house. She circled “male private
body part” on the diagram discussed with Avalos because defendant touched her with that
part.
        Doe confirmed defendant touched her with his private part on her two parts she
“use[s] [for] the bathroom.” Doe used a pen and tissue box to show that defendant put
his private part inside her “private part.” Defendant told Doe more than twice not to tell
anyone about what they did. This made Doe feel unsafe. She was afraid of defendant.
She confirmed she talked to her school principal about what defendant did.
        On cross-examination, Doe testified she saw defendant and Celia arguing many
times. This included loud arguing and made Doe feel unsafe. She felt angry towards
defendant.
        Doe felt like she was in trouble and was nervous when she went to the principal’s
office on August 30, 2023. She could not remember what she was looking at with the
other student before she got in trouble but remembered telling Avalos they were looking
at “[p]eople having sex.” Doe recalled telling Avalos the videos made her uncomfortable
but also curious. She denied ever watching the videos by herself but watched the videos
with defendant. Doe and defendant began watching the videos when they were alone at
the Avenue 9 house while Celia was at work. Celia left Doe home alone with defendant
sometimes. Doe considered defendant “like a dad” because they did activities together,
like playing soccer.
        Doe confirmed she told Avalos that defendant had told her to show the videos to
others if they were interested in that kind of stuff, but she initially denied showing the
videos to other students at school. She then said she showed the videos to her friend who
went to the same school. The friend gave her phone to Doe to look up the videos because
the friend wanted to see them.



                                              9.
       Doe understood “rape” to mean “having sex with someone but you did not give
them permission.” She saw defendant’s “private part” more than once but could not
describe what it looked like. Doe could not remember where this occurred. When
pushed on whether she could not remember because it did not happen, Doe insisted it did
happen, but she forgets easily. She could not understand several questions from defense
counsel about what happened between her and defendant. Doe eventually said she was
uncomfortable telling counsel about it.
       Doe testified defendant did something to her in her room at the Avenue 9 house,
but she could not remember what. She recalled defendant walking into her room but
could not remember what happened next. Doe was able to see defendant from a little
light from the window. She testified defendant grabbed her arm with his hands while she
was in bed in her pajamas. Doe felt something touch her leg while defendant was
holding her arm. She tried to hit defendant with her other hand. Doe felt “something”
weird on the middle section of her body, but she could not see what it was. Defendant
was standing next to the bed and did not get into the bed with Doe. Doe said defendant
removed her underwear. She did not feel anything come inside her body where she goes
“pee” or “poop.” Doe heard something coming from outside the house that she thought
was Celia coming home, so Doe and defendant stopped.
       Celia left Doe home alone with defendant at the Avenue 9 house. One time, Doe
was on her bed drawing on her tablet when defendant came into the bedroom. Doe was a
little sick and tried to tell defendant to leave the room but was unable to do so. She
testified defendant grabbed her hand while she was drawing but she did not remember
what happened next. Defendant did not touch her anywhere else or remove her clothes.
       Doe testified that at a different time, defendant grabbed her arm in the living room
of the Avenue 9 house. She was confused during her testimony about which house was
being discussed. Doe did not remember anything else happening other than defendant



                                            10.
grabbing her arm. She said she felt pain in her back and arms but was uncomfortable
saying where else on her body she felt pain. Doe was permitted to write down her
response, and she wrote, “He would use his male part to go into my two female parts.”
When asked what caused her to feel pain, Doe asked if she could write it down. Doe
wrote, “Him putting his male part in my female body parts.” She saw defendant’s male
private part because he took his pants and underwear off. Doe could feel defendant put
his “male private part” inside her “female body part.” She said defendant did this many
times. Doe testified she was able to participate in physical education at school the week
after this incident.
       Defendant visited the Avenue 11 house, but he did not live there. He spent the
night in the room Doe shared with Celia and shared a bed with Celia. Doe noticed her
mother was naked in the bed but did not notice if defendant was naked. She did not
know if she saw defendant and Celia having sex in their room.
       One time, Doe had just taken a shower when defendant used a window to come
into the Avenue 11 house at night. Doe’s mother and sister were not home. Defendant
touched Doe’s back and her “private part” she uses to “go pee” underneath her clothes.
Doe felt defendant using his hands to touch her private part.
       Defense Evidence
       Ines Corral testified for the defense. Corral had known defendant for three years,
and he lived with her. He stayed with her for three or four months in 2022 in a little room
in the back of her house and paid rent. Defendant also stayed in Corral’s living room for
maybe two or three months in 2023. He did not pay rent that time but helped around the
house. There were nights defendant did not stay at the house while he lived with Corral.
       Corral and defendant would talk regularly and spent time together while he lived
in her house. She found defendant to be a very helpful, respectful, and polite young man.
He never disrespected Corral or her children.



                                            11.
        Corral was a caretaker for her two grandchildren, ages five and seven. She never
saw any odd behavior between defendant and her grandchildren. Defendant always
respected the kids. Corral never had any issues with defendant.
                                          DISCUSSION
  I.    Admissibility of the CFIT
        Defendant contends Doe’s recorded statements from the CFIT were inadmissible
because the CFIT lacked the required indicia of reliability and his counsel was ineffective
for failing to object to its admission.
   A. Additional Background
        Prior to trial, the prosecutor filed an in limine motion to play the video of the CFIT
to the jury in its entirety pursuant to Evidence Code section 1360. Defendant’s attorney
did not object to the CFIT’s admissibility and conceded to the trial court the CFIT “would
suffice for enough indicia of reliability in so long as all the other elements are—are met
for Evidence Code [section] 1360.” She reserved further objection if Doe did not testify,
or if other issues arose with the CFIT or its admission.
        Avalos testified after Doe and confirmed Doe’s CFIT was video recorded. The
prosecutor moved to admit the video as a trial exhibit during Avalos’s testimony without
objection by defense counsel. The video was admitted into evidence and played for the
jury.
        After the trial court and the parties finished conferring on jury instructions, the
prosecutor noted the CFIT transcript had not been admitted into evidence and requested it
be admitted. Defense counsel objected to the transcript’s admission without giving a
reason for the objection. The court noted the objection and reopened the record to admit
the transcript.
        During closing argument, defense counsel argued Doe had reasons to lie because
she doesn’t like defendant and felt like she was in trouble when she was called to the



                                              12.
principal’s office. Counsel observed that Doe said, during the CFIT, that she knows
people go to jail or prison for this kind of conduct and she “wanted to get rid of
[defendant].” Counsel pointed out that Doe denied showing pornography to another
student during her testimony but said she had shown inappropriate videos to her friend
during the CFIT. Counsel also pointed out that Doe denied looking at pornography on
her own during her testimony but said she looked at the videos alone during the CFIT.
She asked the jury to “specifically” look at the questions posed in the CFIT to see if they
were suggestive “and how that can be impressionable on a ten-year-old girl.”
    B. Evidence Code Section 1360
       Evidence Code section 1360 provides an exception to the hearsay rule for certain
statements made by a child abuse victim under the age of 12 years.3 (People v.
Roberto V. (2001)
93 Cal.App.4th 1350, 1367
(Roberto V.).) The statute “allows the court
to admit a child’s hearsay statement describing an act of child abuse upon that child
provided three conditions are met: (1) the court finds that the time, content and
circumstances of the statement provides sufficient indicia of reliability; (2) the child
either testifies at the hearing or there is corroborating evidence of the hearsay statements;
and (3) the proponent of the statement gives notice to the adverse party that it intends to

3      Evidence Code section 1360, subdivision (a) provides:
        “(a) In a criminal prosecution where the victim is a minor, a statement made by the victim
when under the age of 12 describing any act of child abuse or neglect performed with or on the
child by another, or describing any attempted act of child abuse or neglect with or on the child by
another, is not made inadmissible by the hearsay rule if all of the following apply:
       “(1) The statement is not otherwise admissible by statute or court rule.
        “(2) The court finds, in a hearing conducted outside the presence of the jury, that the
time, content, and circumstances of the statement provide sufficient indicia of reliability.
       “(3) The child either:
       “(A) Testifies at the proceedings.
        “(B) Is unavailable as a witness, in which case the statement may be admitted only if
there is evidence of the child abuse or neglect that corroborates the statement made by the child.”



                                                13.
use the statement at trial.” (People v. Brodit (1998)
61 Cal.App.4th 1312, 1329
; accord In
re Cindy L. (1997)
17 Cal.4th 15, 29
.)
       Defendant challenges only if Doe’s CFIT had sufficient indicia of reliability. Our
Supreme Court has identified the following nonexhaustive list of factors to determine the
reliability of a child abuse victim’s hearsay statement: (1) spontaneity and consistent
repetition; (2) mental state of the declarant; (3) use of terminology unexpected of a child
of similar age; (4) lack of motive to fabricate; and (5) the child’s ability to understand the
duty to tell the truth and to distinguish between truth and falsity. (In re Cindy
L., supra,
17 Cal.4th at pp. 29–30, citing Idaho v. Wright (1990)
497 U.S. 805
, 821–822, abrogated
in part by Crawford v. Washington (2004)
541 U.S. 36
, 60–62.)
       A trial court’s admission of evidence under Evidence Code section 1360 is
reviewed for abuse of discretion. (Roberto V., supra,
93 Cal.App.4th at p. 1367
.)
Defendant urges this court to apply independent review based on People v. Eccleston
(2001)
89 Cal.App.4th 436, 445
(Eccleston) and People v. Tatum (2003)
108 Cal.App.4th
288, 296
. However, in Eccleston and Tatum, the confrontation clause was implicated
because the hearsay declarant did not testify. (Eccleston, at pp. 441–442; Tatum, at
p. 295.) Eccleston and Tatum also relied on Lilly v. Virginia (1999)
527 U.S. 116, 136
,
which in turn relied on Ohio v. Roberts (1980)
448 U.S. 56
. Ohio v. Roberts was
abrogated by Crawford v.
Washington, supra,
541 U.S. at pages 60–62, thereby
“rendering Lilly a dead letter” (U.S. v. Smalls (10th Cir. 2010)
605 F.3d 765, 773
). Here,
Doe testified at trial and was subject to cross-examination. “Where the witness is
available at trial for cross-examination, the principal danger of admitting hearsay
evidence is not present [citation], and neither the federal nor the state constitutional right
of confrontation is violated.” (People v. Rodrigues (1994)
8 Cal.4th 1060, 1118
; accord,
People v. Clark (2016)
63 Cal.4th 522, 601
.) Under these circumstances, the admission
of a hearsay statement under Evidence Code section 1360 would appear to be reviewable



                                              14.
for abuse of discretion as the standard generally applicable to a ruling on the admissibility
of evidence. (In re Cindy L., supra,
17 Cal.4th at p. 35
[applying abuse of discretion to
admission of child hearsay in dependency proceeding]; People v. Waidla (2000)
22 Cal.4th 690, 725
[“an appellate court applies the abuse of discretion standard of
review to any ruling by a trial court on the admissibility of evidence, including one that
turns on the hearsay nature of the evidence in question”].) We need not determine the
applicable standard of review because our conclusion in this case would be the same
under either standard.
    C. Ineffective Assistance of Counsel
       Defendant did not object to admission of the CFIT. Indeed, his attorney expressly
acknowledged to the trial court that the CFIT appeared to have sufficient indicia of
reliability. Recognizing his failure to object forfeits the issue on appeal,4 defendant
frames his challenge as an ineffective assistance of counsel claim. Defendant argues
because the CFIT was inadmissible, there was no legitimate reason for defense counsel
not to challenge its admission, and, had counsel objected, the result of the proceeding
would have been different.
       An ineffective assistance of counsel claim has two required prongs. First, the
defendant must show that “counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms.” (People v. Kelly (1992)
1 Cal.4th
495, 520
; accord, Strickland v. Washington (1984)
466 U.S. 668, 688
.) Second, the
defendant must show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result would have been different.” (Kelly, at p. 520; accord,
Strickland, at p. 694.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694.) If the defendant fails to satisfy either
prong, his ineffective assistance of counsel claim must fail. (See id. at p. 697.)

4      (See Evid. Code, § 353; People v. Bolin (1998)
18 Cal.4th 297, 320
.)



                                              15.
       “On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (People v.
Mai (2013)
57 Cal.4th 986, 1009
.) “A claim of ineffective assistance of counsel based on
a trial attorney’s failure to make a motion or objection must demonstrate not only the
absence of a tactical reason for the omission [citation], but also that the motion or
objection would have been meritorious if the defendant is to bear his burden of
demonstrating that it is reasonably probable that absent the omission a determination
more favorable to defendant would have resulted.” (People v. Mattson (1990)
50 Cal.3d
826, 876
, superseded by statute on another ground as stated in People v. Bolin, supra,
18 Cal.4th at p. 315, fn. 2
.)
   D. Analysis
       Defendant argues Doe’s allegations were not consistently repeated and she
contradicted herself on several material facts. He notes her testimony went back and
forth about whether she remembered looking at videos on defendant’s phone and the
reasons for her conversation with the school principal. He points out Doe initially
testified nothing occurred at the Avenue 11 house, but later testified defendant touched
her vagina in that house. Defendant argues her testimony about an incident at the
Avenue 9 house was contradictory, given she said she did not feel anything inside her and
denied there was penetration of her vagina or anus despite her earlier demonstration with
the tissue box. He further argues Doe was inconsistent about whether her underwear
remained on during this incident. Defendant notes Doe said in the CFIT she would be
unable to do physical education because of the assaults, but she testified at trial she was
able to participate in physical education afterwards. He claims Doe contradicted herself



                                             16.
by repeatedly claiming not to remember anything only to later recite facts showing she
did remember.
       Except for Doe’s statements about participating in physical education, defendant
only cites purported inconsistencies within Doe’s trial testimony and does not identify
inconsistencies in her statements during the CFIT or between the CFIT and her testimony.
Defendant acknowledges in his reply brief that “Doe’s inconsistencies were not between
her recorded interview and her trial testimony but within her trial testimony itself.” We
are not persuaded the identified inconsistencies within Doe’s testimony rendered her
statements during the CFIT unreliable. The trustworthiness of Doe’s out-of-court
statements “is determined by examining ‘the totality of circumstances that surround the
making of the statement.’ ” (Roberto V., supra,
93 Cal.App.4th at p. 1374
, italics added.)
Though Doe was sometimes unclear about the details, her description of the abuse in her
testimony was generally consistent with her statements during the CFIT. (See Eccleston,
supra,
89 Cal.App.4th at p. 446
[child’s hearsay statements were reliable where the
details varied but the general outline of abuse remained constant].) In both her testimony
and the CFIT, Doe reported that defendant put his “private part” in her female private
parts. Counsel repeatedly asked Doe during her testimony if she could not remember
details because the allegations did not happen. At no point did Doe agree the abuse did
not occur. The record reflects Doe’s back and forth during trial about what she
remembered was in part related to her significant discomfort in discussing the abuse,
which is consistent with her reported discomfort during the CFIT. Doe’s reluctance to
answer questions about defendant’s abuse may suggest “whatever happened is too
traumatic for the child to discuss.” (People v. Giron-Chamul (2016)
245 Cal.App.4th
932, 967
.) It does not render the CFIT unreliable.
       Other factors of reliability support the CFIT’s admissibility. Doe’s report of the
abuse during the CFIT was spontaneous because she volunteered to Avalos that defendant



                                            17.
“rapes” her. This description was consistent with Doe’s initial disclosure to her school
principal. Though defendant concedes there is no evidence Doe’s mental state is
impaired, he claims her inability during trial to understand “the most basic, unambiguous
questions posed by the attorneys” undermined the reliability of her out-of-court
statements. Defendant again focuses on purported issues during Doe’s testimony, not
with her statements in the CFIT. Nothing in the record reflects adversely on Doe’s
mental state at the time of her reports to Avalos. As defendant acknowledges, there is no
evidence Doe’s mental state is impaired.
       Defendant claims Doe was motivated to fabricate the allegations to deflect her
own culpability when she believed she was in trouble with the principal and because she
was angry at defendant for arguing with her mother. The notion Doe would fabricate
defendant’s rape to avoid trouble at school strains plausibility. Given defendant no longer
lived with Doe and the tenuous nature of defendant and Celia’s relationship at the time of
Doe’s initial report of the abuse, we also find implausible that her anger in the past about
defendant’s arguments with her mother prompted Doe to lie. Defendant presents no
evidence Doe’s statements were fabricated or unreliable.
       Doe did not use terminology unexpected of a child of similar age during the CFIT.
This factor neither supports nor detracts from the reliability of her out-of-court
statements.
       The record reflects defense counsel believed the CFIT had sufficient indicia of
reliability, and we conclude that belief was supported by the record. Counsel presumably
did not move to exclude the CFIT as inadmissible because she surmised such a motion
would not be meritorious. An attorney’s failure to move to exclude admissible evidence
does not constitute ineffective assistance of counsel. (People v. Berry (1990)
224 Cal.App.3d 162, 170
[motion to exclude admissible evidence would have been futile
and counsel’s performance was thus not deficient for failing to make that motion].)



                                             18.
Furthermore, counsel’s closing argument reflects she may have had tactical reasons for
not objecting to admission of the CFIT because she used Doe’s statements in the CFIT to
try to undermine Doe’s credibility to the jury. Specifically, counsel cited the CFIT to
highlight inconsistencies in Doe’s reporting, argue Doe was motivated to lie, and
insinuate Doe’s allegations may have resulted from suggestive questioning by Avalos.
Because the CFIT was sufficiently reliable to be admissible and defense counsel may
have had a strategic reason for not objecting to its admission, counsel’s performance was
not deficient.
       Even if we were to conclude the CFIT was inadmissible, defendant has failed to
show prejudice from its admission. Admission of the CFIT did not “deprive the
defendant of a fair trial.” (Strickland v. Washington, supra,
466 U.S. at p. 687
.) Doe
testified at trial, and defense counsel was able to cross-examine her about any perceived
inconsistencies in Doe’s statements. The “reliability of testimonial hearsay is best
established by ‘the crucible of cross-examination.’ ” (People v. Lewis and Oliver (2006)
39 Cal.4th 970, 1028, fn. 19
.) No reasonable probability exists that the jury would have
reached a different outcome if the CFIT had been excluded. We therefore reject
defendant’s ineffective assistance of counsel claim.
II.    Violation of Section 288.5, Subdivision (c)
       Defendant argues, and the People agree, section 288.5, subdivision (c) prohibits
his conviction for continuous sexual abuse under section 288.5 together with his four
section 288.7 convictions against a single victim during an overlapping period.
   A. Additional Background
       The amended information filed on January 11, 2024, alleged a date range on the
continuous sexual abuse offense (count 5) between January 4, 2020, and August 30,
2020. The trial court noted to the prosecutor during trial that the date range on this count
differed from the other four counts. The prosecutor advised the court this was a typo and



                                            19.
orally moved to amend the end date to August 30, 2023. Defense counsel objected to the
prosecutor’s oral motion to amend the date range on count 5 to coincide with the other
counts but gave no reason for the objection.5 The court granted the prosecutor’s motion
over defendant’s objection.
       On counts 1 to 4 for sexual intercourse or sodomy with a child (§ 288.7, subd. (a)),
the jury was instructed using CALCRIM No. 1127. The jury was given an unanimity
instruction (CALCRIM No. 3501) on counts 1 to 4. On count 5 for continuous sexual
abuse (§ 288.5, subd. (a)), the jury was instructed using CALCRIM No. 1120. Pursuant
to CALCRIM No. 1120, the jury was instructed defendant cannot be convicted unless
they agree he committed three or more acts over a period of at least three months, but the
jury did not have to agree on which three acts were committed.
       During deliberations, the jury requested a transcript for part of Doe’s testimony.
The trial court wrote a message to the jury that they could not have a transcript, but the
court reporter would read back Doe’s testimony, and asking the jury to specify the exact
testimony requested. The court characterized the jury’s subsequent request as “even less
specific” and responded by asking the jury for the exact subject matter of the requested
testimony. The jury asked for Doe’s testimony “regarding pain in her bottom,” “touch on
her back,” and “pain on her arm” (capitalization omitted). The court reporter read back
this part of the testimony to the jury.
       The jury subsequently requested a copy of exhibit C. Exhibit C was Doe’s
handwritten response to defense counsel’s question about what caused pain to her
“female body parts.” Doe’s response stated: “Him putting his male part in my female

5        The People do not argue defendant forfeited the issue on appeal despite his counsel’s
failure to object that charging the discrete sex offenses and continuous sexual abuse during an
overlapping period was not permissible under section 288.5, subdivision (c). Indeed, the People
expressly agree with defendant that the multiple convictions cannot stand. We therefore address
the claim on the merits and do not address defendant’s argument the issue was not forfeited or
alternative argument of ineffective assistance of counsel on this ground.



                                              20.
body parts.” This written response was marked for identification but not admitted as
evidence. The trial court advised the jury this exhibit could not be given to them since it
was not admitted into evidence but noted the exhibit’s content had been read to them in
the recent readback.
   B. Applicable Law and Analysis
       Section 288.5 defines the crime of continuous sexual abuse of a child. The statute
“created ‘a course-of-conduct crime’ not requiring a child relate a specific date, time, or
particular ‘set of circumstances.’ [Citation.] This made it easier for prosecutors to prove
sexual assault against children under 14 where an abuser had recurring access to the
victim.” (People v. Martinez (2024)
105 Cal.App.5th 178
, 186 (Martinez).) “The statute,
however, imposes certain limits on the prosecution’s power to charge both continuous
sexual abuse and specific sexual offenses in the same proceeding.” (People v. Johnson
(2002)
28 Cal.4th 240, 243
(Johnson).) Specifically, section 288.5, subdivision (c)
provides: “No other act of substantial sexual conduct … involving the same victim may
be charged in the same proceeding with a charge under this section unless the other
charged offense occurred outside the time period charged under this section or the other
offense is charged in the alternative.” This statutory subdivision “mandates the charging
of continuous sexual abuse and specific sexual offenses, pertaining to the same victim
over the same period of time, only in the alternative.” (Johnson, at p. 248.) Accordingly,
a defendant “cannot stand convicted of both a violation of section 288.5, and of multiple
counts of other specific felony sex offenses committed against the same victim and in the
same time period as the section 288.5 count.” (People v. Torres (2002)
102 Cal.App.4th
1053, 1055
.)
       All five counts had an overlapping date range on both the amended information
and as later orally amended by the prosecution. Defendant was thus charged with four
discrete sex offenses and continuous sexual abuse of a single victim during the same time



                                             21.
period. These charges were not pled in the alternative, and the jury was not instructed on
charges in the alternative. The jury found defendant guilty on all five counts, and the trial
court sentenced defendant on all counts. The parties agree, as do we, defendant’s
convictions for the discrete sex offenses and continuous sexual abuse during the same
period violate section 288.5, subdivision (c).
       Where the parties disagree is the proper remedy. While defendant contends the
remedy is to remand the matter to the trial court to determine which count(s) to vacate,
the People argue the continuous sexual abuse conviction should be reversed and the four
convictions on the discrete sex offenses affirmed. The People have the better argument.
       Our Supreme Court in Johnson held that if a defendant has impermissible multiple
convictions in violation of section 288.5, subdivision (c), “either the continuous abuse
conviction or the convictions on the specific offenses must be vacated.” (Johnson, supra,
28 Cal.4th at p. 245
.) Johnson thus “requires nothing more than vacation of either the
continuous sexual abuse conviction or the convictions on the specific sexual offenses.”
(People v. Torres, supra,
102 Cal.App.4th at p. 1057
.) Given that section 288.5 was
adopted to prevent child molesters from evading conviction, “courts have held that where
a conviction must be vacated for violating section 288.5, subdivision (c), the defendant
shall be left ‘standing convicted of the alternative offenses that are most commensurate
with [his] culpability.’ [Citations.] Generally, this means ‘upholding whichever
conviction[s] resulted in the greater aggregate penalty and vacating the less serious
count[s].’ ” (People v. Patton (2024)
101 Cal.App.5th 922
, 931, second bracketed
insertion added (Patton).)
       Defendant acknowledges the remedy for multiple convictions in violation of
section 288.5, subdivision (c) is generally to uphold the conviction(s) with the greatest
aggregate penalty but notes the Martinez court recently took a different approach. In
Martinez, the defendant was convicted of four discrete sex offenses and continuous



                                            22.
sexual abuse of a child in violation of section 288.5, subdivision (c). (Martinez, supra,
105 Cal.App.5th at pp. 183–184.) In considering the appropriate remedy, the Court of
Appeal observed that other cases “assert the most appropriate sentence will always be the
one which imposes the longest prison term.” (Id. at p. 187.) But the Martinez court
departed from those cases “because of the nuances” in the defendant’s case. (Id. at
p. 188.) Specifically, the “jurors asked six questions during deliberations seeking
clarification of different issues .… They also asked for readback of witnesses. The
relevance, implications, and meaning of these inquiries lead us to believe the trial judge
who also heard the evidence, watched the witnesses testify, and observed the witnesses’
demeanor, is in the best position to determine which offense or offenses would ‘leave
appellant standing convicted of the alternative offenses that are most commensurate with
his culpability.’ ” (Ibid.) Accordingly, the court remanded the matter for the trial court to
hold a hearing to decide which count(s) best described the defendant’s behavior, vacate
the alternate charges, and conduct a complete resentencing. (Ibid.)
       Defendant contends this case is like Martinez because the jury also posed
“several” requests for readback and exhibits. This inaccurately describes what occurred
during deliberations. The jury requested readback of one part of Doe’s testimony and one
exhibit that was not provided because it had not been admitted into evidence. The back
and forth between the jury and the trial court was directed at clarifying which part of
Doe’s testimony they wished to hear. Unlike in Martinez, the jury did not seek
clarification on several different issues or readback of witness testimony other than Doe’s
testimony. The circumstances here differ from those in Martinez and do not mandate a
remand for the trial court to determine which counts to vacate.
       The trial court imposed and stayed a 12-year term for the continuous sexual abuse
conviction (count 5) and sentenced defendant to four consecutive terms of 25 years to life
for the four discrete sex offenses (counts 1 to 4). The latter aggregate term is the longest



                                             23.
and most commensurate with defendant’s culpability. (See Patton, supra,
101 Cal.App.5th at p. 931 [court vacated § 288.5 conviction where the aggregate term for
the discrete sex offense provided the greatest punishment].) We will therefore vacate the
conviction on count 5.
       “When a count is vacated, the typical remedy is to remand for resentencing so that
the trial court may restructure its sentencing choices to compensate for the lost count.
[Citation.] However, where ‘the trial court imposed the maximum possible sentence’ and
‘there are no sentencing choices to restructure, it is appropriate for us to modify the
sentence on appeal.’ ” (Patton, supra, 101 Cal.App.5th at p. 931.) Here, the trial court
imposed the maximum possible sentence. The offense in counts 1 to 4 permits only one
sentence of 25 years to life (§ 288.7, subd. (a)). The two aggravating circumstances
alleged in the amended information were later dismissed at the prosecutor’s request. The
court imposed the middle term of 12 years on count 5, the maximum the court could
impose without any proven aggravating circumstances. (§ 1170, subd. (b)(2); Cal. Rules
of Court, rule 4.420(b) [courts may only choose an upper term where the aggravating
circumstances have been stipulated to or proven beyond a reasonable doubt to a jury or
trial court].) Because there are no sentencing choices to restructure, we will vacate the
conviction on count 5 and affirm the convictions on counts 1 to 4.
III.   Fine Imposed Under Section 294, Subdivision (a)
       Defendant contends if this court vacates the conviction on count 5 instead of
remanding for resentencing, the $820 fine imposed pursuant to section 294,
subdivision (a) must also be vacated. The People agree this fine must be vacated if the
conviction on count 5 is vacated.
       The trial court ordered defendant to pay a fine of $820 pursuant to section 294,
subdivision (a). Section 294, subdivision (a) permits the trial court to impose a restitution
fine on a defendant convicted of violating section 273a, 273d, 288.5, 311.2, 311.3, or



                                             24.
647.6. A fine under this statutory subdivision was only permissible on defendant’s
section 288.5 conviction because his other four convictions were for violating
section 288.7, which is not one of the enumerated offenses in section 294. Because we
are vacating the conviction on count 5, we agree with the parties that the fine imposed
under section 294 must also be vacated.
                                        DISPOSITION
       The judgment is modified to vacate defendant’s conviction for violating
section 288.5, subdivision (a) on count 5. The fine imposed under section 294,
subdivision (a) is vacated. The trial court is directed to prepare an amended abstract of
judgment reflecting these modifications and forward a certified copy of the amended
abstract of judgment to all relevant authorities. In all other respects, and as modified, the
judgment is affirmed.




                                                                                       HILL, P. J.
WE CONCUR:



MEEHAN, J.



FAIN, J.†




†       Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.



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