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Name: People v. Hernandez
Case #: B225494
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 11/10/2011

The evidence of prior uncharged sex offenses involving appellant’s two daughters was admissible at the trial involving continuous sexual abuse of a granddaughter despite the passage of time. The admissibility of the prior abuse of appellant’s daughters was determined pursuant to Evidence Code section 1108. It was argued on appeal that the prior acts were too dissimilar to the charged offenses. The prior offenses are not required to be as uniquely similar as would be required under section 1101.In this case, there were significant similarities: sexual abuse began at a very young age and extended into adolescence; the allegations all involved victims with close familial ties who were in appellant’s care; and, there were also similarities in the sexual conduct. The remoteness involved a gap of seven or eight years between the end of the abuse of the daughters and the beginning of the continuous abuse of the granddaughter. That gap in time goes to the weight of the evidence rather than its admissibility. The evidence was not so inflammatory as to be excluded in light of the instruction pursuant to CALCRIM No. 1191 which was repeated when the jury sought clarification of the instruction.

Charges are brought within the statute of limitations contained in Penal Code section 801.1, subdivision (a) when prosecution of continuous sexual abuse committed when the victim is under the age of 18 is commenced prior to the victim’s 28th birthday. The charging information in this case originally had cited to section 803, subdivision (f) to toll the statute of limitations. That tolling provision requires clear and convincing independent evidence that corroborates the victim’s allegations. However, it was not necessary for the court to instruct, or the jury to find, any tolling in this case. The granddaughter was molested between the ages of five and 19, with at least three acts of substantial sexual conduct and three lewd and lascivious acts and she was 24 years of age at the time of trial. The trial court correctly observed that the action was timely under section 801.1.