PEOPLE v. SLAUGHTER (1989)

INTRODUCTION

On August 28, 1987, a jury found defendant guilty of committing 15 counts of lewd and lascivious conduct with a child under the age of 14 (Pen.Code, § 288, subd. (a)), but found 15 allegations that defendant occupied a position of special trust and committed an act of substantial sexual conduct within the meaning of Penal Code section 1203.066, subdivision (a)(9) to be false.   He was sentenced to a term of 14 years in state prison.

On appeal, defendant contends the trial court erred in denying his motion to compel the People to elect which act it was relying on as the basis for each count.   He argues the refusal to require an election, with the resulting lack of specific evidence, violated his constitutional right to due process.   Defendant contends the trial court erred in denying his motions to exclude evidence of uncharged offenses and any “fresh complaints.”   He argues it was error to have instructed the jury with CALJIC No. 1.20.   He claims there was insufficient evidence to sustain the convictions and that his trial counsel was ineffective.   In addition, defendant asserts the court erred in aggravating his sentence and that he did not receive sufficient presentence custody credit.   Our review of the record discloses the judgment must be reversed with respect to count XIV as it is not supported by substantial evidence.   We also agree with defendant's contention that he did not receive sufficient presentence custody credit.   We shall affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

 Before we recite the facts of this case, we briefly recount the standard of review on claims of insufficiency of the evidence.   On appeal from a judgment of conviction an appellate court must view the evidence in the light most favorable to the judgment and presume in support of it the existence of every fact which can reasonably be deduced from the evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)  “ ‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt․   The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’ ”  (Id., at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738, quoting People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649;  citations omitted.)   Consequently, the judgment of conviction may be reversed only when the record does not contain sufficient evidence from which any rational fact finder could have found the accused guilty.  (Id., 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)   To warrant the rejection by a reviewing court of evidence which has been believed by the trier of fact, there must exist either a physical impossibility that the evidence is true, or it must be such as to shock the moral sense of the court.   In other words, the evidence must be inherently improbable and that inherent improbability must plainly appear.  (People v. Ozene (1972) 27 Cal.App.3d 905, 910, 104 Cal.Rptr. 170.)

Defendant was charged with 15 counts of lewd and lascivious conduct with a child under the age of 14.  (Pen.Code, § 288, subd. (a).)  Counts I through V involved defendant's conduct with his nephew Jacob S., counts VI through X involved his conduct with his nephew Joshua S., and counts XI through XV involved his activities with his nephew Joseph S.   At the time of trial, Jacob was 13, Joshua was 11 and Joseph was 9.   The boys testified defendant had sexually molested them while they and the rest of their family lived at various residences in Corning and Los Molinos.   They were unable to recall the specific dates or months in which these offenses occurred, but were able to recall where they were living and what grade they were in at the time defendant molested them.   Judy C., the boys' mother and defendant's sister, and Jacob were able to relate the approximate times the family had moved to each residence.

Counts I, VI, and XI alleged defendant had engaged in lewd and lascivious conduct with Jacob, Joshua and Joseph between January 1, 1984, and May 30, 1984.   This reflected a period of time when Jacob was in the third grade, Joshua was in the first grade, Joseph was in kindergarten and the family was living in a mobile home on Hoag Road in Corning.   According to Jacob, defendant would visit “almost every day” or three to four times a week.   On these occasions, defendant would take Jacob, Joshua and sometimes Joseph to their bedroom with him and shut the door.   Defendant would usually stick his hand down Jacob's pants and play with his “weeny” for 10 to 15 minutes.   Sometimes defendant would unbutton Jacob's pants but most of the time he didn't.   Defendant would ask, “Does that feel good?” or “Do you like it?”   He would also “French kiss” Jacob, i.e., stick his tongue in Jacob's mouth and move it around.   He would do these things while Jacob's mother was in another room.   These touchings also occurred in the front room.

According to Jacob, defendant also French kissed Joshua.   Joshua verified that while living on Hoag Road he had been kissed in this manner by defendant.   He also stated defendant had played with or rubbed his “dick.”   Joshua claimed defendant had touched his “dick” more than 10 times and that sometime Jacob and Joseph were present when this occurred.   He remembered seeing defendant touch Jacob on his “dick” in the front room, bathroom and bedroom of the mobile home.   Sometime Jacob's pants would be on and sometimes they were off.   He saw defendant touch Jacob on the “dick” more than five times but did not know if it had happened more than 10 times.   Joshua also saw defendant touch Joseph a couple of times while they were living in the mobile home.   This happened in the bathroom, the front room and the bedroom and sometimes Joseph's pants would be pulled down.   According to Joshua, defendant would visit them a couple of times a week.   Sometimes Joshua's mother was in her room sleeping.

Joseph was not certain when defendant had touched him but was certain he had been touched in this manner.

Counts II and VII and XII alleged defendant had committed a lewd act upon Jacob, Joshua and Joseph between June 1, 1984, and August 30, 1984.   In June 1984, the family moved to a residence on Grant Avenue in Los Molinos where they lived for approximately one year.   During the boys' summer vacation in 1984, defendant continued to visit them.   According to Jacob, that summer defendant stuck his hand down his pants numerous times.   Every time defendant put his hand down his pants and touched his “dick” he would play with it and move his hand up and down.   While defendant was touching Jacob he would say “Does that feel good” or “I love you” and “stuff like that.”   Jacob saw defendant do the same thing to Joshua and Joseph.   Joshua verified that defendant had touched him in the same way about which he had previously testified.   When asked if defendant had touched him in the summer after kindergarten, Joseph responded affirmatively.

Counts III, VIII, and XIII alleged defendant had engaged in lewd and lascivious conduct with the boys between September 1, 1984, and December 30, 1984.   During this period of time the family was still living on Grant Avenue in Los Molinos.   Jacob was in fourth grade, Joshua was in second grade and Joseph was in kindergarten for the second time.   According to Jacob, defendant continued to visit them as frequently as he had when they lived in Corning.   He recalled that on one occasion prior to Christmas of 1984 defendant babysat the boys.   They were watching, “Dukes of Hazard” on television and defendant allowed Jacob to drink beer and get drunk.   While Jacob drank beer, defendant put his hand down his pants and played with his “dick” like “jacking off.”   Sometimes defendant would take his hand out of Jacob's pants and put it into Joseph's or Joshua's pants.   The boys' mother, who testified as a defense witness, verified that on one occasion when defendant had been babysitting the boys, Jacob had been given beer and become intoxicated.   Joshua verified that he had been touched by defendant before Christmastime when he was in the second grade.   When Joseph was asked if defendant had touched him during the second time he was in kindergarten, he responded, “yes.”   These touchings had occurred in the dining room and bedroom and sometimes his brothers were present.

In counts IV, IX and XIV, defendant was charged with committing a lewd and lascivious act upon Jacob, Joshua and Joseph between January 1, 1985, and June 30, 1985.   According to Jacob, after Christmas but before the family moved back to Corning, defendant continued to come to their house and would touch him about four or five times a week.   When asked to describe just one incident, Jacob replied defendant had “French kissed” him and asked “Does that feel good?” and “Do you like it?”   Then defendant “touched” him.   During the last part of fourth grade, defendant was still taking Jacob into the bedroom with him.   When Jacob was asked if his brothers would also go into the bedroom with them, he replied, “mainly just Josh.”   Joshua verified he had been touched by defendant during second grade after Christmas.   When Joseph was asked if he had been touched more than one time during the second time he was in kindergarten, he replied, “yes.”

Jacob testified they had told their mother defendant was touching them “in the wrong places and stuff like that.”   He believes he told his mother when he was in the second grade and again in the fourth grade.   When he was in the fourth grade, the boys told their mother that defendant was playing with their “dicks.”   Jacob claimed that Judy C. believed them, but “didn't want to go into court about it and stuff like that.”   He also testified that they had told their mother they didn't want defendant to babysit anymore.   Joshua stated he told his mom more than ten times that defendant was “playing with my dick and stuff.”   Joshua also claimed defendant threatened to kill anyone who told about what he was doing.   According to Judy C., her sons had told her two or three times that defendant was molesting them.   However, they never gave her any definite indications as to what was going on.   They would only say defendant was “playing dirty” with them.   They would not elaborate on the matter when she pressed them for further information.   She conceded that while in Los Molinos she discontinued using defendant as a babysitter because her sons had complained that they didn't like him being there.

For reasons unrelated to defendant's molestation of the boys, Judy C. excluded defendant from the family home between June 1985 and February 1987.   After the house of the mother of defendant and Judy C. burned down in January 1987, Judy C. and defendant reconciled and defendant was allowed to resume his visits with the boys.

Counts V, X, and XV alleged defendant committed lewd acts upon the boys between February 1, 1987, and March 30, 1987.   At this time the family was living in a residence on Rio Verde Court in Corning.   Jacob was in the sixth grade, Joshua was in the fourth grade and Joseph was in the second grade.   Jacob recalled one occasion when he was in the sixth grade when his uncle came into the bathroom with him.   While Jake went to the bathroom, defendant kissed him.   Defendant usually “played with” Jacob while he was going to the bathroom.   Joshua was not there on this one occasion, but had been present other times when this had occurred.   After the fire at Jacob's grandmother's house, defendant would sometimes molest him in his truck.   He would put his hand down Jacob's pants.   On one occasion in March, defendant, Jacob, Joshua, and Joseph were in the boys' bedroom.   One by one defendant put the boys on his lap and put his hand down their pants.   He kissed Jacob and Joshua.

When Joshua was in the fourth grade, defendant touched him in the front room, bedroom and bathroom.   Sometimes Jacob was present when this happened in the bathroom.   His mother would usually be in her room.   Defendant would also “do things” to Joshua in his camper.   Sometimes Jacob would be there.   Joshua had seen defendant touch Jacob.   He also saw defendant touch Joseph about six times in the same way that he had touched Joshua, i.e., he played with his “dick” and kissed him.

Joseph testified that when he was in the second grade and living in Corning, defendant had come into his bedroom and touched his “weeny.”   Defendant would move his hand in an up and down fashion.   His brothers had seen it happen to him, and he had seen it happen to his brothers.   He remembered defendant had touched him after Christmas while he was in the second grade.

In March 1987, on the day after defendant had put his hand down the boys' pants in their bedroom, Jacob told his teacher Mrs. Deromedi what defendant had been doing.   He reported defendant's activities to her after a classroom discussion concerning “how people touch them and stuff like that, ․”  All three of the boys were subsequently interviewed on March 30, 1987, and April 27, 1987, by Linda Lucas of the Tehama County Welfare Department's Child Protective Services Division.   These interviews were recorded.   The tapes were subsequently played for the jury as part of the defense case in an effort to establish inconsistencies in the boys' testimony.

Defendant did not testify.   Defense counsel established that Officer Fisk of the Corning Police Department, the investigating officer, had never contacted or questioned defendant.   During his closing argument, defense counsel attacked the boys' credibility.   He pointed out the various contradictions in their testimony about when the incidents occurred, where they occurred, and how the boys were clothed at the time they were molested.   He argued they were suggestible and would respond “yes” to leading questions posed to them by the district attorney at trial and by Linda Lucas during their interviews.   He pointed out that Joseph would just as readily respond “no” to similarly leading questions by defense counsel.

DISCUSSION

I

 Defendant's first contention is that the trial court erred in not requiring the People to elect which acts it was relying on for the basis of each count charged.   On the first day of trial, defendant filed a motion for an order compelling election.   On the following day, the motion was argued and denied.   The court found election was not required unless a defendant would otherwise be deprived of fair notice and an opportunity to defend and this had not been demonstrated.   Defendant conceded credibility was the only issue or defense.   In addition, the court believed it was too late in the proceeding to tell the People they had to “revamp their entire proceedings.”   The court subsequently instructed the jury at the close of trial with the unanimity instructions, CALJIC Nos. 4.71.5 and 17.01.¹

It does not appear that defendant's demand for an election was untimely as the request was made at the outset of trial.  (See People v. Dunnahoo (1984) 152 Cal.App.3d 561, 571, 199 Cal.Rptr. 796.)   A defendant has “the right to compel an election ․ when it appears from the people's opening statement, or the evidence, or otherwise that more acts have been or will be testified to than have been charged.”  (People v. Fremont (1941) 47 Cal.App.2d 341, 346, 117 P.2d 891;  see also People v. Williams (1901) 133 Cal. 165, 169, 65 P. 323;  People v. Metheney (1984) 154 Cal.App.3d 555, 563, 201 Cal.Rptr. 281;  People v. Gordon (1985) 165 Cal.App.3d 839, 871–873, 212 Cal.Rptr. 174 (conc. opn. of Sims, J.).)   There is merit to defendant's contention that the court erred in denying his request for election.   It remains to be determined whether the error occasioned any prejudice to defendant.

Ordinarily, it is sufficient if the court instructs the jury with CALJIC No. 4.71.5 or 17.01 where the prosecution fails to make an election.  (People v. Gordon, supra, 165 Cal.App.3d at p. 853, 212 Cal.Rptr. 174;  People v. Dunnahoo, supra, 152 Cal.App.3d at pp. 568–570, 199 Cal.Rptr. 796.)   These instructions inform a jury that to find a defendant guilty it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific criminal act.   Defendant argues the giving of the unanimity instructions does not cure the error that occurs when a trial court refuses a defendant's demand for election, as opposed to a mere failure by the prosecution to voluntarily make an election.   Moreover, he claims that despite the giving of CALJIC Nos. 4.71.5 and 17.01, the nonspecific testimony in the present case concerning the multitude of acts committed by defendant made it impossible for the jury to identify one act and unanimously agree that he committed one specific act during each of the periods charged in each count.   He also argues he suffered prejudice in that he was precluded from presenting a defense based on alibi.   In addition, the failure to require election permitted the prosecution to introduce evidence of many uncharged acts.

 First, we note defendant's main reason in the court below for moving to compel an election was to render the boys' testimony concerning all of defendant's lewd acts other than the elected acts inadmissible as uncharged offenses.   However, the majority of these offenses would have been received in evidence even if the prosecution had been required to make an election.   In cases involving sex crimes, evidence of other not too remote sexual acts with the prosecuting witness is generally admissible to show a lewd disposition or sexual passion toward that particular victim;  as long as the evidence of these other sexual acts is not provided by the uncorroborated testimony of the prosecuting witness.  (People v. Sylvia (1960) 54 Cal.2d 115, 119–120, 4 Cal.Rptr. 509, 351 P.2d 781;  People v. Stanley (1967) 67 Cal.2d 812, 816, 63 Cal.Rptr. 825, 433 P.2d 913;  People v. Barney (1983) 143 Cal.App.3d 490, 494, 192 Cal.Rptr. 172.)  “Such evidence tends to prove defendant would act to realize his desire on the occasion of the charged offense [citations] and is not dependent upon defendant's bad character or his disposition to do wrongful acts.”  (Barney, supra, at p. 494, 192 Cal.Rptr. 172.)   Therefore, the statutory exclusion pursuant to Evidence Code, sections 352 and 1101 is inapplicable.  (People v. Dunnahoo, supra, 152 Cal.App.3d at p. 574, 199 Cal.Rptr. 796.)

In the present case, the boys' testimony concerning defendant's lewd acts with their brothers could properly be admitted.   The boys' testimony regarding such acts committed upon themselves could be admitted to the extent their testimony was corroborated by their brothers.   The boys basically corroborated each other concerning defendant's frequent visits during which he French kissed them and fondled their genitals in various rooms in their house.

Relying on People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883 and People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, defendant contends the evidence of the other acts could not properly be admitted because defendant's intent was not in issue.   A similar argument was rejected in People v. Moon (1985) 165 Cal.App.3d 1074, 212 Cal.Rptr. 101, which held that Tassell did not overrule the aforementioned principle enunciated in People v. Sylvia and would not prevent the introduction of such evidence to demonstrate a defendant had repeatedly sexually molested the prosecuting witness as part of a common scheme or plan.   (Id., 165 Cal.App.3d at pp. 1079–1081, 212 Cal.Rptr. 101.)   We agree with the rationale set forth in Moon, and note Moon was recently cited with approval by our Supreme Court.  (People v. Bunyard (1988) 45 Cal.3d 1189, 1207, mod. 46 Cal.3d 584e, 249 Cal.Rptr. 71, 756 P.2d 795.)

 Defendant's remaining claim of prejudice appears to be that the prosecution's failure to elect the specific acts upon which it was relying deprived him of his due process right to notice of the charges against him, an opportunity to formulate a defense and the right to have a unanimous jury verdict.   Regarding the jury unanimity issue, he claims the unanimity instructions do not cure this problem under the circumstances of this case, because the victims' testimony did not distinguish any particular incidents so that the jury could isolate one act and unanimously agree defendant had committed that specific act.   However, the testimony concerning counts III, V, VIII, X, XIII, and XV, did provide evidence of specific identifiable acts.   With respect to counts III, VIII, and XIII, Jacob testified about one incident which occurred when defendant was babysitting.   While watching television, defendant fondled all of the boys' genitals.   With respect to counts V, X and XV, Jacob stated he and his brothers had been fondled in the same manner by defendant in their bedroom on the day before he complained to Mrs. Deromedi.

Regarding the remainder of the counts, I, II, IV, VI, VII, IX, XII and XIV, defendant is correct in his assertion that the testimony concerned indistinguishable acts of genital fondling or “French kissing” that occurred in the bedroom, the bathroom or the livingroom.   Several opinions promulgated by the Fifth District Court of Appeal support defendant's contention that this indistinguishability deprived him of due process in part because it rendered the jury incapable of unanimously agreeing upon specific acts committed by defendant in relation to each count.  (People v. Vargas (1988) 206 Cal.App.3d 831, 253 Cal.Rptr. 894;  People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878;  People v. Atkins (1988) 203 Cal.App.3d 15, 249 Cal.Rptr. 863;  People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352.)

Vargas, Luna, Atkins, and Van Hoek all involved what the opinions described as generic sex offenses committed by resident child molesters.²  In regard to some counts, the victim's uncorroborated testimony concerning the defendant's molestation was bland and unspecific as to any occasion, yet involved accusations of these acts occurring on numerous occasions.   In each case the court held that it would be impossible for the jury to unanimously agree upon one specific act for each charge due to the nonspecificity of the testimony.   Accordingly, the counts in question were reversed because defendants had been deprived of due process.  (Vargas, supra, 206 Cal.App.3d at pp. 842–847, 253 Cal.Rptr. 894;  Luna, supra, 204 Cal.App.3d at pp. 737–738, 742–749, 250 Cal.Rptr. 878;  Atkins, supra, 203 Cal.App.3d at pp. 19–23, 249 Cal.Rptr. 863;  Van Hoek, supra, 200 Cal.App.3d at pp. 814–818, 246 Cal.Rptr. 352.)

We respectfully disagree with these views expressed by the Fifth District, particularly as enunciated in Van Hoek and Atkins.   In the present case, we do not believe the witnesses' failure to provide distinguishing characteristics deprived the jury of the ability to reach a unanimous verdict concerning a specific act with respect to each count.   As noted by counsel below, this case hinged solely on credibility.   There was nothing in the evidence or argument offered below from which the jury could have found with respect to each count that defendant committed one of the lewd touchings but not the others.   Because the acts were substantially identical in nature, any juror believing one act took place would undoubtedly believe all the acts took place.   The jury's verdict implies that it did not believe the only defense offered and that it unanimously agreed defendant committed all of the numerous specific lewd acts.  (See People v. Diedrich (1982) 31 Cal.3d 263, 283, 182 Cal.Rptr. 354, 643 P.2d 971;  People v. Winkle (1988) 206 Cal.App.3d 822, 829, 253 Cal.Rptr. 726;  People v. Deletto (1983) 147 Cal.App.3d 458, 466, 195 Cal.Rptr. 233.)   This determination necessarily included a unanimous finding that defendant committed one specific act during each count as charged.

 The aforementioned Fifth District cases also support defendant's claim he was deprived of adequate notice and the opportunity to present an alibi defense.  (Vargas, supra, 206 Cal.App.3d at p. 846, 253 Cal.Rptr. 894;  Atkins, supra, 203 Cal.App.3d at pp. 20–22, 249 Cal.Rptr. 863;  Van Hoek, supra, 200 Cal.App.3d at pp. 816–817, 246 Cal.Rptr. 352.)   The cases primarily rely on two opinions from our Supreme Court, People v. Castro (1901) 133 Cal. 11, 65 P. 13 and People v. Williams, supra, 133 Cal. 165, 65 P. 323.

In both Castro and Williams, the defendant was charged with a single act of rape involving a young victim under the age of consent.   Each victim testified to multiple acts of intercourse extending over several months.   The Castro court held:  “Under the instructions given to the jury in the case at bar, the defendant should have been convicted, if any one of the various acts of intercourse sworn to by the prosecutrix was established beyond a reasonable doubt;  but, certainly, the defendant was not called upon to defend himself against all of these respective acts of intercourse, extending through a period of several months.   The information only charged one act, and upon that allegation the case must stand or fall.   Possibly, any one of the acts sworn to by the prosecutrix could have been selected by the state as the act charged in the pleading, but the entire four acts could not be so selected.   The state, at the commencement of the trial, should have been required to select the particular act upon which it relied to make good the allegation of the information.   This was not done;  and even conceding that the failure to make such election at that time did not constitute error because of the want of demand upon the part of the defendant to make the election, still, when the case went to the jury, the court, in some form, should have directed their minds to the particular act of intercourse which it was incumbent upon the state to establish by the evidence, before a verdict of guilty could be returned against the defendant.   This was not done.”   (People v. Castro, supra, 133 Cal. at pp. 12–13, 65 P. 13;  original emphasis.)

In Williams, the Supreme Court stated:  “Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them.   The jury were not even told that they must all agree that some specifically described act had been performed.   A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge, as to any one of these separate offenses.   Even worse than that was possible.   As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted.   And how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried?   Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by the general designation, would be a judicial farce, if it were not something a great deal worse.”  (People v. Williams, supra, 133 Cal. at p. 168, 65 P. 323.)

It must be recognized that the decisions in Castro and Williams were grounded upon due process considerations in light of criminal procedure as it then existed.   Many changes have taken place since 1901 and one of these changes is the preliminary hearing process.   As Justice Sims pointed out in his concurring opinion in People v. Gordon, supra, “an information plays a limited but important role:  It tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution.   But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript;  it is the touchstone of due process notice to a defendant.

“In light of the notice function played by the preliminary hearing transcript, a prosecutorial election is unnecessary to advise defendant of the criminal acts he must defend against.   When Williams asks ‘how could he defend when he was not informed as to what particular offense out of hundreds testified to by the prosecutrix, he was to be tried?’  (People v. Williams, supra, 133 Cal. at p. 168, 65 P. 323), the modern answer is that, at a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.”  (Gordon, supra, 165 Cal.App.3d at pp. 870–871, 212 Cal.Rptr. 174 (conc. opn. of Sims, J.);   fn. omitted.)

The basic rationale underlying Castro and Williams is that due process requires an accused be advised of the charges he confronts so that he may have a reasonable opportunity to prepare his defense.   In modern criminal prosecutions, as long as the evidence presented at the preliminary hearing supports the number of offenses charged against a defendant and covers the time periods charged in the information, a defendant has all the notice the Constitution requires.   Ordinarily a defendant has no right to notice of the specific time or place an offense occurred.  (People v. Barney, supra, 143 Cal.App.3d at p. 497, 192 Cal.Rptr. 172.)   The prosecution has “no duty to provide more explicit notice than human nature and science permit.   A contrary conclusion would lead to the absurd result that those defendants who are most clever about concealing the precise time or place of their crimes, and who are therefore the most dangerous, would avoid prosecution.”  (Gordon, supra, 165 Cal.App.3d at p. 868, 212 Cal.Rptr. 174 (conc. opn. of Sims, J.).)

Defendant argues he was prejudiced by the prosecution's failure to elect specific acts (and therefore specific times) as this precluded him from raising an alibi defense.   We disagree.   Even if a motion for election had been granted, the defendant had no right to make the prosecution place a more exact time on the commission of the offense than the children were capable of recollecting.   An election would only have required the prosecution to identify or select one act, for example, the first lewd act testified to by each victim.   The exact time of this one act would have been no more certain than any of the other acts testified to by the victims under any count.   Consequently, an election would not have improved defendant's ability to present an alibi defense.   It appears defendant did not offer an alibi, not because of the lack of an election, but because he did not have one.   In fact, he conceded below that the defense would be based solely on credibility.   Furthermore, an alibi defense is a virtual impossibility in a case such as this where defendant had unsupervised access to his nephews on a regular basis.   Unless he was out of town for an extended period of time, a claim never made, defendant's case necessarily turned on credibility.  (See People v. Dunnahoo, supra, 152 Cal.App.3d at pp. 571–572, 199 Cal.Rptr. 796.)

We conclude that under the circumstances of this case, the court's erroneous refusal to require the prosecution to make an election was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710.)

II–IV **

V

 Defendant argues the evidence is insufficient to support the jury's verdict.   He does not single out any particular count as being infirm or lacking in evidence of molestation.   Instead, he argues the boys' testimony showed multiple acts occurred within a time period but never focused on a particular act sufficiently to allow the jury to separate that act from all others and thereby base its verdict on that one act.   As previously noted, there was evidence of specific acts introduced with respect to counts III, V, VIII, X, XIII and XV.   Our review of defendant's contention is therefore limited to the remaining counts.

Again, defendant's assertion is supported by decisions from the Fifth District Court of Appeal.   In People v. Atkins, supra, 203 Cal.App.3d at p. 22, 249 Cal.Rptr. 863, the court held the evidence in that case was insufficient to support the jury's verdict on two particular counts, as it did not demonstrate that defendant had committed a particular act on a specific occasion.   (Atkins, supra, at pp. 22–23, 249 Cal.Rptr. 863.)   In People v. Luna, supra, 204 Cal.App.3d 726, 250 Cal.Rptr. 878, the Fifth District again held there was insufficient evidence to support the jury's verdict on three particular counts where the victim's testimony regarding these counts was not specific as to any identifiable act and was only generic in nature.  (Id., at pp. 737–749, 250 Cal.Rptr. 878.)   However, in People v. Vargas, supra, 206 Cal.App.3d 831, 253 Cal.Rptr. 894, the court stated it believed its recent opinions in Atkins and Luna were incorrectly decided and should be reexamined.  (Id., 206 Cal.App.3d at p. 848, 253 Cal.Rptr. 894.)   The Vargas court did not believe that the evidence was insufficient in the case before it merely because of the absence of distinguishing characteristics separating the multitude of crimes about which the victim testified.   Where the testimony clearly establishes the statutory elements of the crime charged, “[t]he failure to provide evidence of a distinguishing characteristic of each act does not somehow render insufficient what is otherwise sufficient evidence.   There is no statutory requirement that where multiple acts of the same character are proved, each of which constitutes the same crime with which the defendant is charged, an additional distinguishing characteristic must be shown to prove guilt.”  (Vargas, 206 Cal.App.3d at p. 851, 253 Cal.Rptr. 894.)   The court stated that absent the precedent of Atkins and Luna, it would conclude that the evidence was sufficient to support conviction.   (Id., 206 Cal.App.3d at p. 848, 253 Cal.Rptr. 894.)

Unlike the court in Vargas, we do not feel constrained by precedent from the Fifth District and agree with Vargas to the extent it would hold that evidence is sufficient to support a verdict as long as it establishes each element of the crime charged.   That multiple acts without distinguishing characteristics are demonstrated within each count's time frame in the present case does not render the evidence insufficient to support the verdict.

The remainder of defendant's contention concerning the sufficiency of the evidence is merely an attack upon the victims' credibility, pointing out the inconsistencies in their testimony.   However, “ ‘ “[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which the determination depends.” ’ ”  (People v. Barnes (1986) 42 Cal.3d 284, 306, 228 Cal.Rptr. 228, 721 P.2d 110;  citations omitted.)   The inconsistencies were not so great, nor the testimony so improbable or physically impossible that we would be justified in intruding upon the jury's determination.

Although not specifically argued by defendant, our review of the record discloses the evidence is insufficient to establish each element of the crime charged in count XIV.   Count XIV alleged defendant had committed a lewd and lascivious act upon Joseph between January 1, 1985, and June 30, 1985.   The record is devoid of any evidence in support of this allegation.   Joseph merely testified defendant touched him more than once during the second time he was in kindergarten.   There is no way of establishing from this evidence that this touching occurred during the second half of the school year, which is the time period charged in count XIV.   Moreover, unlike the other charged counts concerning Joseph, there is no testimony from Jacob or Joshua that would support a finding that a lewd and lascivious act had occurred with Joseph during the charged time period.   Reversal is required with respect to count XIV.

The record discloses defendant received a concurrent sentence of six years on this count.   There is no need to remand for resentencing as it is not reasonably probable that a different sentence would be imposed on the remainder of the counts.   The trial court is directed to enter a judgment of acquittal as to count XIV and amend the abstract of judgment accordingly.

VI–VIII ***

DISPOSITION

The judgment is reversed with respect to count XIV and modified as provided in parts V and VIII of this opinion.   In all other respects the judgment is affirmed.

FOOTNOTES

1.   The court instructed the jury in the language of CALJIC No. 4.71.5 as follows:  “Defendant is charged in each count of the Information with the commission of the crime of lewd and lascivious act, a violation of section 288 [subdivision] (a) of the Penal Code, on or about a period of time between certain dates set forth in the respective counts of the Information.  [¶]  In order to find the Defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act constituting said crime within the period alleged.  [¶]  And, in order to find the Defendant guilty, you must unanimously agree upon the commission of the same specific act constituting said crime within the period alleged.  [¶] It is not necessary that a [sic ] particular act or acts committed so agreed upon be stated in the verdict.”The jury was instructed in the language of CALJIC No. 17.01 as follows:  “The Defendant is charged with the offense of lewd and lascivious act, 15 counts.   As to any count he may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the Defendant guilty, all the jurors must agree that he committed the same act or acts.   It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.  [¶]  Each count charges a distinct offense.   You must decide each count separately.   The Defendant may be found guilty or not guilty of any or all of the offenses charged.   Your finding as to each count must be stated in a separate verdict.”

2.   The term “resident child molester” refers to a person who either resides in the same home with the minor or has unchecked access to the child and repeatedly molests the child over a prolonged period of time.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

MARLER, Associate Justice.

EVANS, Acting P.J., and SIMS, J., concur.