People v. Balu CA3

Filed 10/30/26 P. v. Balu CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) THE PEOPLE, C101701 Plaintiff and Respondent, (Super. Ct. No. 21FE018061) v. BALAJI BALU, Defendant and Appellant. After a jury found defendant Balaji Balu guilty of committing 10 lewd acts on a minor under the age of 14 (Pen. Code, § 288, subd. (a))1 the trial court sentenced him to prison for 24 years. Prosecution of Balu’s crimes began in 2021, when the Sacramento County District Attorney’s Office filed a criminal complaint alleging the lewd acts happened more than 30 years earlier. This prosecution was feasible despite the passage of time because, under section 803, subdivision (f) (section 803(f)), a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by the victim of the section 288 offense. But section 803(f) imposed other requirements that are pertinent here, including (1) that there was “independent evidence” corroborating the victim’s allegation (§ 803, subd. (f)(2)(C)) and (2) that “the opinions of 1 Undesignated statutory references are to the Penal Code. 1 mental health professionals” could not satisfy the “independent evidence” requirement (§ 803, subd. (f)(3)). On appeal, Balu argues we must reverse his convictions because the trial court failed to instruct the jury on section 803(f)(3)’s requirement and, in closing argument, the prosecution suggested that the testimony of its expert witness (a psychologist) corroborated the allegations against Balu. We reject this claim because Balu has not carried his burden to show a reasonable probability the jury would have returned a different finding if it had been properly instructed. Balu raises numerous other claims on appeal, including that the trial court violated his due process rights by instructing the jury, consistent with section 803(f), that the prosecution had to show the existence of independent evidence corroborating the allegations against Balu under a “clear and convincing” standard of proof (instead of “beyond a reasonable doubt”); the trial court erred by instructing the jury it could rely on the prosecution’s expert witness to evaluate the “believability” of his victims; his trial counsel provided ineffective assistance by failing to offer admissible evidence in support of his defense theory; and, the trial court’s instruction to the jurors under Evidence Code section 1108—that if they decided Balu committed uncharged acts of sexual abuse against a second female they could conclude he was inclined to commit the sexual abuse he was charged with—violated the ex post facto clauses of the federal and state Constitutions because the statute was enacted after his alleged commission of the lewd acts. We reject these additional claims. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In the late 1980’s, Balu moved from India to his brother’s home in Fair Oaks, California. Three generations of the family were already living there: Balu’s parents; Balu’s brother and his brother’s wife, Mala; and Balu’s nieces (his brother’s daughters), of whom K.—born in 1983—was the oldest. Mala’s sister also lived in the Sacramento area with her own family, which included a daughter, A., who was born in 1982. K. and 2 A., maternal cousins who were about one year apart in age, spent a lot of time playing and sleeping at each other’s houses when they were growing up. In 2020, over 30 years after Balu moved to his brother’s home, A. told police that Balu and his father sexually abused her at the Fair Oaks house. She decided to report this because Balu’s father died that year, and instead of feeling relief, she felt the opposite. She realized that Balu’s father never suffered any consequences for what he did to her, and she did not want Balu to avoid consequences too. In October 2021, the prosecution filed a felony complaint, alleging Balu committed 10 counts of sexual assault against A. between January 1988 and January 1991 (when A. was five to eight years old). (§ 288, subd. (a).) The complaint also alleged the charges were timely filed for purposes of section 803(f) because (1) A. reported Balu’s crimes to California law enforcement less than one year earlier, and (2) independent evidence clearly and convincingly corroborated A.’s allegations: a second female alleged that Balu had sexually assaulted her too. That second female was K., A.’s cousin and Balu’s niece. Over three weeks in 2024, a jury heard testimony from A., K., Balu, and more than 20 others, most of whom were related to A., K., and/or Balu by blood or marriage. It was undisputed at trial that in 1993 or 1994, A.’s father (Balu’s sister-in-law Mala’s brother-in-law) angrily confronted Balu. In Balu’s version of the event, a family friend with whom he worked approached him one afternoon and asked, “did you touch any kids inappropriately?” Believing his friend was referring to Balu’s brother’s children, he replied, “I have not touched anyone.” The friend replied, “Okay … [l]et’s go. We are going to meet” A.’s father, and then drove Balu to A.’s house, where A.’s father was “really upset and screaming” but did not accuse Balu of anything. Seven family members who testified for the prosecution had different recollections of the event, but the picture painted by their combined testimony on direct examination was that (1) there was at least one tense and chaotic “family meeting” (2) attended by numerous 3 members of the extended family (3) at which A.’s father alleged that both Balu and Balu’s father had sexually abused A. and K., (4) Balu’s wife advocated/pleaded for Balu, and (5) a consensus was reached at the meeting or shortly afterward that (a) Balu’s father had to return to India (b) but Balu could remain in the United States because the family was reluctant to destroy his life. A. testified that in the years leading up to that family meeting, Balu and his father separately abused her numerous times in K.’s house. Balu’s father started it. He took her to a bathroom or to a bedroom where K. did not sleep, and touched her vagina with his hands and his mouth. Balu began abusing her when she was seven or eight years old, often in K.’s bedroom. He was alone with the girls during the day because he tutored them and they sometimes had “nap time.” He touched A.’s vagina with his hands and moved her hand so that it touched his penis. She remembered being unsettled by Balu’s erect penis, and shocked that Balu was abusing her too. Unlike his father, Balu did not touch her vagina with his mouth. Balu had a moustache and was a young man, whereas his father did not have a mustache and was an old man. K. testified that Balu (her uncle) and her grandfather separately abused her numerous times in her home when she was six to eight years old. Sometimes, her grandfather would tell her it was time to take a nap, and then when they were alone in a room, he would put his hands down her pants and into her vagina. Regarding Balu, K. remembered one time when he told her she had to do her math homework and that he would help her. He took her to her room. They were alone and the door was closed. He made her lie on her bed and unbutton her pants, and then he put his fingers in her vagina. K. decided to tell her mother, Mala, after she and A. spoke and realized they were both being abused by Balu and K.’s grandfather. K. cried and told Mala she did not want to get in trouble. When Mala gave her a hug and told her the men would not hurt her anymore, K. felt immense relief. Shortly afterward, Mala took her to a doctor at a Kaiser medical facility where she was asked many questions about the difference between 4 “good” touching and “bad” touching. K. remembered telling the person who interviewed her that she said both Balu and her grandfather had touched her in a bad way. The abuse stopped after that. Her grandfather and Balu were not allowed to be around her and A. Balu was kicked out of the house within a few weeks, and her grandfather eventually was sent back to India. The jury heard evidence that someone from child protective services (CPS) spoke with Mala in January 1991. Portions of the resulting CPS report were read into the record. Pertinent here, the report stated Mala told the CPS employee that, two days earlier, K. told her Balu “[t]ouched her privates” more than once. The report also stated Mala said she made Balu move out of the house but did not want criminal charges brought against him because “the family wants to handle the problem.” The jury also heard evidence that a CPS report was created in the 1990’s in connection with allegations that A. had been sexually abused. Balu testified in his own defense that he never touched A. or K. inappropriately; he never spent time alone with K., though he did see her every day and sometimes helped her do math homework; and he saw A. “once or twice max” at “some family dinner or lunch.” Mala did not kick him out of the house in January 1991. He moved out of the house in September 1991, after he got a job and could afford his own apartment. He was away from his brother’s house briefly in the summer of 1991 when he traveled to India to get married. Each side introduced expert testimony. The prosecution’s expert, a clinical and forensic psychologist, explained that adults often have mistaken ideas about how a child should react after they have been sexually abused, and many years ago the psychology field developed a theory of this phenomenon that it named “child sexual abuse accommodation syndrome” (CSAAS). Adults often have “misconceptions surrounding if a child discloses sexual abuse, when they disclose the abuse, how they disclose the abuse.” But “many children do not tell that they have been abused right away. Many 5 kids wait weeks, months, even years. Many don’t even tell by the time they are adults.” While false allegations of child sexual abuse “certainly can happen, … it’s uncommon,” the CSAAS expert said. One of the defense experts testified that after conducting a psychosexual evaluation of Balu, he concluded Balu did not meet the criteria for pedophilia (an unnatural sexual interest in prepubescent children) in part because he was in a loving, decades-long marriage that produced two children—something that is not normal for a pedophile. The other defense expert testified the chance that two child sexual abusers might be in the same household was close to one in 10,000. The second expert also explained that “especially right after” children are sexually abused, their adult caregivers usually notice a change in behavior: hypervigilance, scanning the environment for threats; the abused children are “no longer as … easygoing”; they are “jumpier.” In argument to the jury, the prosecutor said: “[T]hose little girls did exactly what we tell children to do. They told. They did say something, and it was the people around them, the adults, their parents, their aunts and uncles, their cousins … that led to those two little girls not getting justice, and that’s why we’re here now, because if all of that chaos and toxicity wasn’t happening around them, something would have happened back in 1991 … but it didn’t.” Defense counsel argued to the jury that Balu was being “conflated” with his father. As for the family members who testified for the prosecution, and who were adults when A. and K. were sexually abused, defense counsel said: “Guilt is a … powerful emotion” that “will make you do things that you wish you hadn’t done. And all we got to do is say he did it.” But there were “all kinds of reasons” why it was clear Balu did not do it. “And one of the biggest reasons he didn’t do it is because of all these conflated stories.” Counsel continued: “I don’t know the abuse occurred, although it looks like it probably did. I don’t know exactly who did it, but I do know that Bal[u] didn’t do it, and I think by process of elimination that just leaves us with” Balu’s father. 6  After the jury found Balu guilty as charged, the trial court sentenced him to an aggregate term of 24 years in prison. Balu timely appealed in August 2024. His opening brief was filed in December 2025, and this case was fully briefed on July 20, 2026. DISCUSSION I Corroborating Evidence to Satisfy the Statute of Limitations Balu argues reversal is required because the trial court failed to instruct the jury not to consider the CSAAS expert’s testimony in deciding whether there was independent evidence that corroborated A.’s allegation. The People argue this claim is forfeited on appeal and any error is harmless. We reject Balu’s claim because Balu has not carried his burden to show a reasonable probability the jury would have returned a different finding if properly instructed. A. Legal Background Effective January 1, 1994, section 803, subdivision (g), changed the statute of limitations for a section 288 offense from six years to within one year of the date of a report to a law enforcement agency by a person of any age alleging that, while under the age of 18 years, they were the victim of a crime described in section 288 (or other crimes described in other sections of the Penal Code). (People v. Lewis (2015) 234 Cal.App.4th 203, 208.) In 1997, section 803, subdivision (g), was amended to allow the filing of a complaint by such a victim within one year of a report to a California law enforcement agency. (Lewis, at p. 208.) The 1997 language is now found in section 803(f). (Lewis, at p. 208.) And though the People usually must show by a preponderance of the evidence that criminal charges are timely filed, section 803(f) imposes a higher hurdle. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 681 (Ruiloba).) “If the victim was 21 years of age or older at the time of the report,” there must be “independent evidence” that “clearly and convincingly corroborate[s] the victim’s allegation.” (§ 803, subd. (f)(2)(C).) Further, 7 the statute provides that “[i]ndependent evidence excludes the opinions of mental health professionals.” (§ 803, subd. (f)(3), italics added.) A constitutional right, or a right of any other sort, may be forfeited on appeal by the failure to timely assert the right in the trial court. (People v. McCullough (2013) 56 Cal.4th 589, 593.) This rule encourages parties to bring errors to the attention of the trial court, so that they may be corrected in the first instance. (Ibid.) It is unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been avoided. (Ibid.) But appellate courts have authority to reach forfeited claims, and sometimes do so to forestall claims of ineffective assistance of counsel (IAC). (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Crittenden (1994) 9 Cal.4th 83, 146 (Crittenden).) B. Additional Factual Background One family witness for the prosecution testified that Balu “did not proclaim his innocence” during the family meeting when faced with the allegations that he sexually abused A. and K. The witness remembered being “struck” by Balu’s “lack of denials.” In closing argument, the prosecutor told the jury there were “two forms” of independent evidence corroborating A.’s allegations against Balu: (1) he sexually abused K. too and/or (2) he made “statements or acknowledgments expressing guilt” during the family meeting. The prosecutor told the jury it could consider the fact that Balu abused K. in deciding whether he also abused A. The prosecutor emphasized that K. “disclosed to Mala, her mother, in 1991 that” Balu “was touching her. [¶] And we know that that disclosure happened. That’s not in dispute, right? Because her mom took her to Kaiser to be evaluated. CPS interviewed them. We know that.” The prosecutor also urged the jury to consider the similarities in Balu’s abuse of the two girls. The prosecutor told the jury the CSAAS expert’s testimony was “not evidence that a crime happened.” Rather, it was meant to help the jury understand what was common and what was “not so uncommon with kids who have suffered sexual abuse.” “I know 8 that’s a little weird phrasing,” the prosecutor said, “but essentially you are looking at comparing what [the CSAAS expert] said kids -- what is not inconsistent with how kids act to what those girls actually did, and essentially that is another further corroboration.” The trial court instructed the jury that it had to decide if the People proved there was independent evidence that clearly and convincingly corroborated A.’s allegations. It also instructed the jury that an example of corroborating evidence could be testimony that Balu molested another person. But the trial court failed to instruct the jury pursuant to section 803, subdivision (f)(3) that the CSAAS expert’s opinion could not satisfy the requirement of independent corroborating evidence. C. Analysis Though Balu did not object to the trial court’s instruction below, he contends the claim is reviewable on appeal because, among other things, his substantial rights were affected by the error and trial counsel rendered ineffective assistance by failing to object. We will consider the claim. (Crittenden, supra, 9 Cal.4th at p. 146.) Since the trial court’s instructional error is undisputed, we turn to the question of prejudice. Balu argues that while there is a split of authority regarding what standard of prejudice applies when a jury is given erroneous instructions on the elements of a statute of limitations, we need not decide whether to apply the more demanding standard of Chapman v. California (1967) 386 U.S. 18 (that the error was harmless beyond a reasonable doubt) or the less demanding standard of People v. Watson (1956) 46 Cal.2d 818 (whether there is a reasonable probability that Balu would have obtained a more favorable result absent the error) because reversal is required even under the Watson standard.2 Balu contends this is so because in argument to the jury, the prosecutor relied 2 In the reply brief, Balu urges us to apply the Chapman test. But this argument is doubly forfeited because it was not raised in the opening brief and is not supported by 9 on the CSAAS expert’s testimony to support the credibility of A. and K., and expressly characterized the expert’s testimony as “ ‘further corroboration’ ” of A.’s claims and K.’s claims. Applying the Watson standard, we conclude Balu has not carried his burden. (Cf. People v. Sivongxxay (2017) 3 Cal.5th 151, 181 [under Watson, the fact that it is the defendant’s burden to show prejudice “can be important”].) Balu’s argument appears to be that (1) in large part because K.’s testimony “had a variety of discrepancies,” (2) “there was good reason to question” it,3 (3) and since there was good reason to question it, it is “far more likely that jurors relied on” the CSAAS expert’s testimony “as a more reliable form of corroboration” than K.’s testimony. The argument is unpersuasive, because the operative question is not whether K.’s testimony was imperfect, but whether Balu has demonstrated a reasonable probability that he would have obtained a more favorable result if the trial court had properly instructed the jury. (See Ruiloba, supra, 131 Cal.App.4th at p. 693.) And in answering that question it is important to keep in mind that, consistent with the trial court’s instruction to the jury, uncharged acts that show a criminal defendant’s propensity to commit sexual offenses against a child can corroborate a victim’s allegation under section 803(f). (Ruiloba, supra, 131 Cal.App.4th at pp. 682-683.) Accordingly, even if the asserted flaws in K.’s testimony “might in the abstract make one ponder” the reasoned argument. (See People v. Sorden (2021) 65 Cal.App.5th 582, 603 [“failure to present reasoned argument and legal authorities in support” of a contention results in forfeiture]; People v. Collins (2020) 52 Cal.App.5th 627, 634, fn. 4 [“The failure to raise this argument in his opening brief forfeits defendant’s ability to make the argument in reply because the Attorney General has no opportunity to respond”].) 3 Specifically, Balu contends: K. gave conflicting testimony regarding whether Balu or her grandfather molested her first; A. contradicted K.’s testimony that the two girls agreed to disclose the abuse to their parents before K. told her mother, Mala; and contrary to K.’s testimony that she told her mother about both Balu and her grandfather at the same time, the testimony of other witnesses indicated this was false. 10 “possibility” that Balu did not sexually abuse her (In re Thomas (2006) 37 Cal.4th 1249, 1277), the evidence “would have established in a reasonable juror’s mind” (ibid.) that it was highly probable he did so, and therefore that he had a propensity to commit sex crimes. And that propensity evidence is sufficient corroboration of A.’s allegations that Balu abused her too. (Ruiloba, supra, 131 Cal.App.4th at pp. 682-683.) This is so because imperfections in K.’s testimony that Balu identifies (1) were readily attributable to memory lapses caused by the passage of time and honest mistakes and (2) concerned secondary questions (did Balu or his father abuse K. first?; did K. tell her mother about both abusers at the same time?; did K. and A. agree with each other to report the abuse?) in relation to the primary question: did Balu sexually abuse K. when she was a young girl? And especially in light of the prosecutor’s argument to the jury regarding the evidence that, in 1991, K. told others that Balu sexually abused her, Balu has not persuaded us that had the trial court given a proper instruction, the jury likely would have discounted K.’s testimony that he sexually abused her. (Cf. People v. Hendrix (2022) 13 Cal.5th 933, 948 [“Watson asks the court to imagine what the jury would have done in the counterfactual world in which it received correct instructions”; in other words, “what the ‘jury is likely to have done’ ”]; People v. Henderson (1985) 163 Cal.App.3d 1001, 1012-1013 [where identity was the sole issue, “minor memory problems and discrepancies in the identifications by the eyewitnesses” was not sufficient for Watson error considering overall strength of the evidence].) II Standard of Proof for the Corroboration Finding Balu argues the “clear and convincing” standard of proof the jury applied in making the section 803(f) finding violated his due process rights because the standard should be “beyond a reasonable doubt.” We will address this argument that was not raised in the trial court. (Crittenden, supra, 9 Cal.4th at p. 146.) 11  Balu acknowledges California case law—including a decision issued by a different panel of this court in People v. Linder (2006) 139 Cal.App.4th 75—rejects this argument. (Id. at pp. 81-85 [holding that while the statute of limitations constitutes a substantive right in California, it is not an element of an offense (as it is not a part of the crime itself and does not increase a criminal defendant’s potential punishment) and therefore the “reasonable doubt” standard need not apply].) But he insists that three United States Supreme Court decisions undermine the reasoning of Linder: Ring v. Arizona (2002) 536 U.S. 584, Apprendi v. New Jersey (2000) 530 U.S. 466, and Jones v. United States (1999) 526 U.S. 227. The threshold problem with this contention is that Linder came out after those three decisions and expressly discussed two of them in reaching its holding. (Linder, at pp. 81-85 [rejecting the argument that then-recent United States Supreme Court decisions required a jury to find the facts necessary for a statute of limitations extension under former § 803, subd. (g) “beyond a reasonable doubt”].) Accordingly, this argument is not persuasive. III Instruction Regarding the “Believability” of the Alleged Victims Balu argues the trial court invaded the province of the jury on the decisive issue of credibility by instructing the jurors they could rely on the CSAAS evidence to evaluate “the believability of the alleged victims.” The People argue this claim is forfeited on appeal and lacks merit. We will address this argument (Crittenden, supra, 9 Cal.4th at p. 146) and reject it on the merits. A. Additional Factual Background The trial court instructed the jury that CSAAS evidence “relates to a pattern of behavior that may be present in child sexual abuse cases. Testimony as to the accommodation syndrome is offered only to explain certain behavior of an alleged victim or a victim of child sexual abuse. The testimony about [CSAAS] is not evidence that [Balu] committed any of the crimes charged against him or any conduct or crimes with 12 which he was not charged. [¶] You may consider this evidence only in deciding whether or not [A.’s] conduct and the conduct of [K.] was consistent with the conduct of someone who has been molested and in evaluating the believability of the alleged victim.” (Italics added.) B. Analysis Balu argues the trial court’s instruction to the jurors that they could consider the CSAAS evidence in evaluating the believability of A. and K. was “a bridge too far,” because it improperly allowed the CSAAS evidence to corroborate the claims of abuse in this case where “credibility was key.” Balu acknowledges that numerous California appellate courts have rejected challenges to the believability portion of the instruction. Most recently, in People v. Page (2025) 114 Cal.App.5th 1022, the court reasoned that the instruction “considered as a whole and in the context of [the expert’s] testimony as it must be [citations], would not have led jurors to believe they could consider the testimony as evidence of guilt. The court told the jury that [the expert’s] ‘testimony about child sexual abuse is not evidence that the defendant committed any of the crimes charged against him.’ (Italics added.) Rather, her testimony was ‘offered only to explain certain behavior of an alleged victim of child sexual abuse,’ and could be considered ‘only in deciding whether or not [the alleged victim’s] conduct was consistent with the conduct of someone who has been molested, and in evaluating the believability of the alleged victim.’ (Italics added.) [The expert] testified she knew [the alleged victim’s] age and relationship to [the defendant] but had no other knowledge about the parties or the alleged molestation. She acknowledged the delayed and incremental disclosure commonly seen in cases in which children have been sexually abused could also be seen in cases of false allegations of abuse. [The expert] expressed no opinion on whether [the alleged victim] was telling the truth or whether [the defendant] was guilty. Although the trial court did not use the language … that [the defendant] prefers, the court correctly instructed the jury on how it could and could not use [the expert’s] testimony. On this 13 record, it is not reasonably likely the jury would have understood the instruction as allowing it to consider [the expert’s] testimony as proof that” the defendant molested the alleged victim. (Id. at pp. 1029-1030.) Likewise here, the trial court told the jury that the CSAAS expert’s testimony was “not evidence that [Balu] committed any of the crimes charged against him or any conduct or crimes with which he was not charged” (italics added), but instead was offered “only” to help the jury “decid[e] whether or not [A.’s] conduct and the conduct of [K.] was consistent with the conduct of someone who has been molested and in evaluating the believability of the alleged victim.” The CSAAS expert acknowledged that false allegations of abuse were possible (though “uncommon”) and Balu points to nothing in the expert’s testimony stating an opinion on whether A. and K. were telling the truth or whether Balu was guilty. We agree with the reasoning of Page—it is not reasonably likely the jury here would have understood the instruction as allowing it to consider the CSAAS expert’s testimony as proof that Balu sexually abused A. and/or K. Thus, we disagree with Balu that it was error for the trial court to instruct the jury as it did. IV IAC Claim Balu contends his trial counsel provided ineffective assistance by failing to offer admissible evidence “supporting his own theory that it was” Balu’s father who abused A., “and undercutting the state’s theory that she was also abused by” Balu. Specifically, Balu contends his trial counsel should have sought admission of a 1998 CPS report, which suggested that in an interview that year, when A. was about 15 years old, she indicated she was abused by Balu’s father and did not indicate that Balu abused her. We reject this IAC claim on direct appeal because the record does not reveal the reasons why Balu’s trial attorneys acted as they did. 14  A. Legal Background To establish a claim for ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the defendant suffered prejudice because of such deficient performance. (People v. Mickel (2016) 2 Cal.5th 181, 198.) To demonstrate deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. (Ibid.) To demonstrate prejudice, the defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. (Ibid.) “[C]ertain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding. [Citations.] The record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel’s actions or failure to take certain actions were objectively unreasonable.” (Ibid.) “Moreover, we begin with the presumption that counsel’s actions fall within the broad range of reasonableness, and afford ‘great deference to counsel’s tactical decisions.’ [Citation.] Accordingly, [our Supreme Court] ha[s] characterized defendant’s burden as ‘difficult to carry on direct appeal,’ as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel” had no rational tactical purpose for an action or omission. (Ibid.) B. Additional Factual Background and Analysis The portion of the reporter’s transcript that is pertinent to this issue reflects that when counsel for Balu attempted to use the contents of the 1998 CPS report during cross- examination of a witness, the trial court indicated the report was “not in evidence, and the statements in it are all hearsay.” The prosecutor then made an objection and counsel for both parties discussed the issue. Counsel for Balu then clarified how she wanted to use 15 the contents of the report. After the trial court again indicated that counsel’s approach was contrary to the rules of evidence, the reporter’s transcript states: “(Unreported discussion was then had between [Balu’s two attorneys]),” after which the attorney who was conducting cross-examination told the trial court, “Okay. That’s fine,” and moved on to a different subject. This record suggests Balu’s attorneys discussed tactics in connection with how/whether to use the 1998 CPS report at trial. Accordingly, we cannot conclude there was deficient performance in this regard without knowing the contents of that conversation between Balu’s two attorneys. (See People v. Mickel, supra, 2 Cal.5th at p. 198; cf. People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [“An appellate court should not … brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed”]; United States v. Dunfee (1st. Cir. 2016) 821 F.3d 120, 128 [“Where, as here, the defendant was represented by multiple attorneys, an ineffective assistance challenge is particularly difficult to mount”]; Lopez-Nieves v. United States (1st Cir. 1990) 917 F.2d 645, 647 [“the presence of a second attorney during the proceedings seriously undermines appellant’s claim of ineffective assistance of counsel”]; State v. Parker (2020) 274 N.C. App. 464, 479 [declining to reach the merits of an IAC claim on direct appeal because the reporter’s transcript indicated that a pertinent off-the-record discussion occurred at the bench but the record “contain[ed] no evidence of the issues and objections raised during this unrecorded bench conference, nor even of its duration”].) V Adoptive Admissions Instruction Balu contends the trial court erred in failing to instruct the jury that it had to consider any adoptive admission by him with caution. The People argue this claim is forfeited on appeal and lacks merit. We will address this argument (Crittenden, supra, 9 Cal.4th at p. 146) and reject it on the merits. 16  A. Additional Factual Background As mentioned above, one family witness for the prosecution testified he remembered being “struck” by Balu’s “lack of denials” and failure to “proclaim his innocence” in the face of the allegations aired during the family meeting that he sexually abused A. and K. Balu observes in his opening brief that the prosecution also sought to rely on “certain actual statements” by him, including: evidence from A. and K. that he instructed them not to tell anyone about the sexual abuse because they were “bad” and they would “get in trouble”; and evidence that when K. confronted Balu many years after the sexual abuse ended, he gave a “fake apology” and said, “I wish you health, wealth, and happiness.” Pursuant to CALCRIM No. 358, the trial court instructed the jury to “[c]onsider with caution any statement made by [Balu] tending to show his guilt unless the statement was written or otherwise recorded.” The trial court also instructed the jurors, pursuant to CALCRIM No. 357, that they could conclude Balu “admitted [a] statement was true,” if they decided that four requirements were met: (1) the statement was made to Balu or in his presence; (2) Balu heard and understood the statement; (3) Balu would, under all the circumstances, naturally have denied the statement if he thought it was not true; and (4) Balu could have denied it but did not. B. Analysis In light of our Supreme Court’s reasoning in a decision that came out while briefing was pending in this matter, we agree with the People that—read together—the trial court’s instructions properly instructed the jury to consider any adoptive admission by Balu with caution. CALCRIM No. 358 told the jury to view with caution any statement by Balu. CALCRIM No. 357 gave additional context to CALCRIM No. 358 by defining and describing adoptive statements. (See People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 305 [“CALJIC No. 2.71, which defines admissions, properly instructed the jury to view with caution any out-of-court oral admission by [the 17 defendant]”; “CALJIC No. 2.71.5 gives additional context to CALJIC No. 2.71 by defining and describing adoptive admissions”; “[r]ead together, CALJIC Nos. 2.71 and 2.71.5 properly instructed the jury to consider [the defendant’s] oral adoptive admission with caution. No additional clarification was required”]; People v. Holmes (2007) 153 Cal.App.4th 539, 545-546 [“In reviewing a challenge to an instruction, we consider the instructions as a whole, in light of one another, and do not single out a word or phrase, and ‘ “assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given” ’ ” (italics added)].) Accordingly, this claim is unpersuasive. VI Evidence Code Section 1108 and Ex Post Facto Principles Balu argues the trial court’s instruction to the jurors under Evidence Code section 1108—that, if they decided Balu sexually abused K., they could conclude he was inclined to commit sex crimes against A.—violated the ex post facto clauses of the federal and state Constitutions because the statute was enacted after his last act of alleged sexual abuse of A. The People argue this claim is forfeited on appeal and lacks merit. We will address this argument (Crittenden, supra, 9 Cal.4th at p. 146) and reject it on the merits. A. Additional Factual Background The trial court instructed the jurors that the People presented evidence that Balu “committed the crimes of molestation against [K.] that were not separately charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that [Balu], in fact, committed the uncharged offenses. [¶] … [¶] If you decide that [Balu] committed the uncharged offenses, you may, but are not required to, conclude from the evidence that [Balu] was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that [he] was likely to commit and did commit molestation of [A.] as charged here.” 18  The trial court continued: “If you conclude that [Balu] committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. [¶] This evidence is not sufficient by itself to prove that [Balu] is guilty of molesting [A]. The People must still prove the charge beyond a reasonable doubt.” B. Analysis California’s c