People v. Jimenez CA3

Filed 11/2/26 P. v. Jimenez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Siskiyou) THE PEOPLE, C102565 Plaintiff and Respondent, (Super. Ct. No. SCCR-CRF- v. 2022-1861) FRANK ANTHONY TONY JIMENEZ, Defendant and Appellant. A jury convicted defendant Frank Anthony Tony Jimenez of eight counts of lewd and lascivious conduct against M.B. and J.J., two counts of forcible lewd and lascivious conduct against M.B., one count of oral copulation against M.B., and one count each for making, possessing and distributing child pornography. He was sentenced to 275 years to life. On appeal, defendant challenges both the trial court’s failure to instruct the jury on unanimity for the oral copulation charge and the admission of testimony from a former victim under Evidence Code section 1108. Defendant also contends that insufficient evidence supports the convictions for forcible lewd and lascivious conduct against M.B. Lastly, defendant argues, and the People agree, that his sentences for oral copulation and making child pornography were unauthorized. Defendant requests a remand for resentencing. 1  As we shall explain, we agree with the parties that the sentences are unauthorized, however, remand is not required. Instead, we will modify the judgment to reflect the correct sentences as described herein. We otherwise affirm the judgment. FACTS AND HISTORY OF THE PROCEEDINGS Molestation of M.B. and J.J. M.B. was born in 2017, and she was seven years old when she testified at defendant’s trial. M.B. grew up living mostly with her mother, Amy B. (mother), who was her primary caregiver. M.B. went to preschool with defendant’s son, J.J. After meeting in the pickup line, mother and defendant arranged playdates for their children. M.B. went over to defendant’s house about twice a week for three hours at a time. The families also went to parks, swam, and ate dinner together. In late 2021, M.B. told her mother that defendant had been giving her treats. Defendant told M.B. not to tell anyone because he would get into trouble. This upset mother because she had expressly asked defendant not to give treats to M.B.; mother saved treats for special occasions and did not often give them to M.B. Mother confronted defendant about the treats in text messages on October 5, 2021, and November 19, 2021. During a playdate at M.B.’s mother’s home on November 24, 2021, M.B. told her mother that she had touched defendant’s penis. Mother immediately called defendant to pick up J.J. When defendant arrived, he explained to mother that he was using the restroom when both children walked in on him. He said M.B. “very quickly” touched the tip of his penis. Defendant “discouraged her” and was hopeful that was the end of it. The playdates for M.B. and J.J. resumed after this incident but mother came along to defendant’s house as often as possible. However, there were occasions where M.B.’s 2 mother, as a single mother, had no choice but to leave M.B. with defendant and J.J. so that she could attend personal appointments. On January 11, 2022, M.B. told her mother that she kept touching defendant’s penis and that he had shown her how to do it. M.B. also said that defendant rubbed her “vulva.” Mother called the police. Mother brought M.B. to the Klamath Falls C.A.R.E.S. facility on January 25, 2022, for a physical examination and interview. During the physical examination, M.B. said, “Girls have vulvas, boys have penises. My dad has a penis and also [defendant] and J.J. Didn’t see dad’s penis. Saw [defendant]’s penis. [Defendant] lets me touch his penis but my mom doesn’t let me. Seeing J.J.’s penis, J.J. lets me touch his penis too when he goes pee pee.” M.B. was not interviewed after the physical examination because she was “antsy” and it was policy for the forensic interviewer to stop asking questions when a child is “done.” In early February 2022, M.B. told her aunt Jessica B. that defendant let her touch his penis “often” and that he kissed her bottom. Jessica B. told M.B.’s mother who then called law enforcement. Mother provided additional details, saying that defendant had kissed M.B.’s bottom and that she did not like it because his beard was “very scratchy.” She also reported that M.B. had gotten into trouble at school for kissing J.J. and that M.B. played the “get married” game at defendant’s house. These new disclosures warranted a second attempt at a forensic interview with M.B. M.B. was interviewed on February 17, 2022. She said that defendant “let” her touch his penis with her finger when he went to the bathroom. M.B. said it happened “[a] lot of times.” Defendant also pulled down M.B.’s pants and underwear. He rubbed and kissed her “butt cheeks” with his mouth; M.B. said that it hurt because his beard was “prickly.” 3  Defendant told M.B., “It’s only you and me to keep a secret” and “It’s you and me touching [defendant’s] penis.” He also told M.B. that she would get “big in trouble” if she said anything. After M.B.’s second interview, law enforcement asked mother to call defendant and record their conversation. Mother called defendant on February 22, 2022, and asked him to explain what happened with M.B. Defendant said that he “let M.B. touch” him. M.B. constantly asked him and would “beg” defendant to let her see and touch his penis. Although defendant often responded that “Mama said no,” he did allow her to touch his penis “like three times.” Defendant said that M.B. went into the bathroom “all the time” and would reach around to touch his penis. One time, M.B. yanked on defendant’s penis and he told her that it hurt. Defendant explained that she did it “the other way” and he told her, “Yeah, that’s better. That doesn’t hurt.” He explained that M.B. would go straight from having a snack to “that.” Defendant also explained that he “wiped” M.B. after she used the toilet but did not do anything wrong. He did not tell mother about this because M.B. asked him not to. Defendant did not think it was a “bad thing” and thought mother was okay with it. Defendant’s home was searched after the recorded phone call. Organized photographs of child erotica were found on defendant’s various computers including 192 erotica photos and three videos of M.B. A “Pedophile Handbook” was also saved on one of the computers. The handbook is a guide for pedophiliacs to learn how to: recruit victims, use victims for sexual gratification, evade law enforcement, hide photographs and videos, and defend oneself if accused of sexual abuse. One of defendant’s computers also included records of conversations where he admitted his attraction to children. He also said that he had told his adult son about his pedophilia proclivity and that his son would “fit in well” in the community. The computer also had a Dropbox storage platform that was used to distribute child pornography. In the Dropbox were folders named “satisfied Tony,” “trouble,” and “my AOA,” meaning age of attraction. 4  M.B. was interviewed again on September 8, 2022. She said that defendant told her and J.J. to take off their clothes when they jumped on the bed. Defendant also instructed M.B. to take all her clothes off, including her underwear, when she ate a sandwich because it was “messy.” Additionally, he told her to get naked when she went in the “water” because her underwear might get “soapy.” Defendant asked M.B. to take off her underwear more than once. M.B. also reported that she slept in defendant’s bed. Defendant slept without clothes on “all the time.” On one occasion, defendant had a “pee-pee accident” in the bed where defendant’s penis was “sticking” in M.B.’s spot in bed. M.B. described that defendant’s penis went “straight out” into her side, and she saw a “clear-ish yellow” substance on the bed. She also felt a “slippery” substance that she described as “fish slime” or “frog slime” on her leg. M.B. recalled “too many” times where “frog slime” came out of defendant’s penis. One time, defendant got the “frog slime” on M.B.’s pajamas; there were a lot of spots. Defendant took photos of the “frog slime” with his phone. M.B. remembered having to take a bath with J.J. because defendant had sat on J.J.’s bed and put “pee pee” on J.J. Defendant would “pee pee” on J.J.’s tummy and belly button. J.J. was also interviewed in 2022. He recalled that defendant sent pictures of M.B. to him on his tablet and that defendant took videos of him and M.B. jumping on the bed. He said that jumping on the bed was a secret between the three of them. J.J. had seen M.B. naked and remembered that M.B. licked defendant’s penis in the bathroom. Defendant told the children not to tell M.B.’s mother. Molestation of John Doe II Defendant’s older son, John Doe II (John), also testified at defendant’s trial. From about 1983 to 1989, when he was between four and 10 years old, John flew out to California from Nebraska in the summers to see defendant. John did not have any 5 specific recollection of sexual abuse, but he was frequently naked at defendant’s house, saw a news article about a nude beach, and found pornography magazines in the bathroom. John also showered with defendant and his stepmother where he believed “something sexual” happened. When John was an adult, defendant told him that John had performed oral sex on him when he was a child. Verdict and Sentence A jury convicted defendant of two counts of forcible lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)) (statutory section citations that follow are to the Penal Code unless otherwise stated), eight counts of lewd acts on a child under the age of 14 (§ 288, subd. (a)), oral copulation with a child under the age of 10 (§ 288.7, subd. (b)), production of child pornography (§ 311.4, subd. (c)), possession of child pornography (§ 311.11, subd. (a)), and distribution of child pornography (§ 311.2, subd. (c)). The jury also found true that there were multiple victims (§§ 667.61, subds. (b), (e)(4), (j)(2), 1203.066, subd. (a)(7)), that defendant befriended M.B. for the purpose of committing lewd acts (§ 1203.066, subd. (a)(3)), that defendant used matters depicting sexual conduct in the commission of committing the lewd acts (§ 1203.066, subd. (a)(9)), that defendant had substantial sexual conduct with M.B. (§ 1203.066, subd. (a)(8)), that M.B. was under the age of 14 when she was modeled and posed to produce pornography (§ 311.4, subd. (c)), and that defendant possessed more than 600 images of child pornography, at least 10 of which were of a prepubescent minor under the age of 12 (§ 311.11, subd. (c)). In a bifurcated bench trial on the aggravating factors, the trial court found true beyond a reasonable doubt that the crime involved acts disclosing a high degree of callousness (Cal. Rules of Court, rule 4.421(a)(1)), that the victim was particularly vulnerable (id., rule 4.421(a)(3)), that defendant took advantage of a position of trust or confidence (id., rule 4.421(a)(11)), and that defendant engaged in violent conduct that indicates a serious danger to society (id., rule 4.421(b)(1)). 6  Defendant was sentenced to a determinate term of seven years four months for the child pornography convictions. He was also sentenced to an indeterminate term of 265 years to life for the lewd and lascivious and oral copulation convictions. Defendant timely appeals. DISCUSSION I Unanimity Instruction Defendant contends that the trial court prejudicially erred by failing to sua sponte instruct the jury on unanimity for the oral copulation charge in count 5. According to defendant, the prosecutor presented two separate acts as alternative bases to support count 5: the first being the incident where M.B. licked defendant’s penis (licking incident) and the second where defendant kissed M.B.’s bottom (kissing incident). Defendant cites to arguments made by the prosecutor during rebuttal closing that defendant here argues “explicitly” characterized the kissing incident as evidence of oral copulation. Defendant concludes that these rebuttal statements created an ambiguity as to whether the licking or the kissing incident was the underlying event for count 5. Defendant claims that the prosecutor’s failure to elect between the incidents with the clarity required under People v. Melhado (1998) 60 Cal.App.4th 1529, warranted a unanimity instruction. We disagree. The record shows that the prosecutor elected the licking incident to support the oral copulation charge. A unanimity instruction was therefore not required. As relevant here, defendant was charged in a first amended information with oral copulation and sexual penetration in count 5 (§ 288.7, subd. (b)) and a lewd and lascivious act upon a child under the age of 14 in count 6 (§ 288, subd. (a)). Count 5 did not include factual allegations relating to the oral copulation and sexual penetration but count 6 detailed that the lewd and lascivious act was defendant “kissing [M.B.]’s 7 bottom.” The prosecutor also alleged as to count 6 that defendant had substantial sexual conduct with M.B. (§ 1203.066, subd. (a)(8).) The jury was instructed as to count 5 that “[o]ral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.” (CALCRIM No. 1128.) The jury was separately instructed that if they found defendant guilty of the count 6 lewd and lascivious conduct charge, they then also had to “determine if during the commission of that crime the defendant had substantial sexual conduct with [M.B.]. [¶] To prove this allegation, the People must prove the defendant committed substantial sexual conduct with [M.B]” which was defined as “penetration of the vagina or rectum of either the victim or the offender by the penis of another or by any foreign object, oral copulation or masturbation over or under the clothing of either the victim or the offender.” (CALCRIM No. 3250.) In closing argument, the prosecutor discussed count 6 first. She said, “So now we jump to count 6 because count 5 is the oral copulation charge. So what’s the to wit there, the to wit is kissing [M.B.]’s bottom.” Afterwards, the prosecutor discussed the substantial sexual conduct enhancement for count 6. She said, “Count 6 carries a special enhancement to it, and that’s substantial sexual conduct.” “I’m asking you for a true finding on … [whether] oral copulation occurred on count 6 when the defendant kissed her butt, and that’s because oral copulation is any contact no matter how slight between the mouth of one person and the sexual organ or anus of another person. Penetration is not required. [¶] I submit to you, ladies and gentlemen, that whether he kissed her buttocks, whether he did something else to her buttock, it qualifies as oral copulation; and that’s why I’m asking you to find true the special enhancement to count 6, substantial sexual conduct.” The prosecutor later addressed count 5 in closing argument. She said, “So here’s the last count, count 5, the one that’s different than all the rest. [¶] This is again with 8 [M.B.]. It’s 288.7[, subdivision] (b), it’s oral copulation on a child under the age of ten.” After repeating the required elements for this crime, the prosecutor played a video of J.J.’s interview where he said that M.B. licked defendant’s penis. The power point on which this video was played was titled, “COUNT 5 – ORAL COPULATION.” Before yielding to the defense attorney, the prosecutor reminded the jury that the verdict forms included the information relevant for each charge. She called it the “yellow brick road as to which charge you’re looking at.” The verdict form for count 6 both described the underlying lewd and lascivious act as “[k]issing [M.B.]’s [b]ottom” and asked for a finding on the substantial sexual conduct enhancement. The count 5 verdict form identified the crime as “oral copulation with child < 10” but did not provide any factual information. Defense counsel responded directly to the prosecutor’s argument on the enhancement for count 6. He said, “So you remember when [the prosecutor] talked about the enhancement to count 6, the substantial conduct relating to when [defendant] allegedly kissed M.B.’s butt and she said substantial conduct is either an oral copulation on a sexual organ, which is penis or vagina, or the anus. Those are the only three ways that you can have substantial sexual conduct. [¶] So the -- the term anus does not refer to the butt cheek. The term anus refers to the butthole or the tissue that’s connected to the rectum. … [¶] … [¶] When … M.B. says that [defendant] kissed her butt, one explanation is that he put his lips on her anus, the butthole. Right? [¶] The other explanation is that he put his lips on her butt cheek. If he put his lips on her butt cheek, that’s a not true on that enhancement because it has to be on the anus, not on the butt cheek.” After discussing some of the other counts, defense counsel addressed count 5. He said, “So the next count that I want to go to is count 5 and this is the -- oral copulation. This is -- this is where J.J. said that M.B. licked his dad’s penis.” Counsel argued that the 9 prosecutor had not proven this allegation because J.J.’s testimony regarding this incident was unreliable and M.B. never mentioned it in her interviews. Defense counsel later returned to count 6, saying, “[m]oving to count 6, so I talked a little bit about count 6 already because [it’s] part and parcel of the same incident relating to count 1, the kissing of the bottom.” Counsel argued that although M.B. reported this incident in an interview, neither she nor J.J. testified about it at trial. In rebuttal, the prosecutor discussed the kissing incident again. She argued, “And I heard it in another place is that the defense attorney wants to use the adult words of butt cheeks for a little child trying to explain the places that they were touched; but I would submit to you, ladies and gentlemen, when you look at the explanation of what [M.B.] says, it felt owie because it was scratching me. [¶] That’s not someone who puts a light kiss on a baby’s cheeks, that is a person who is committing oral copulation against a child that doesn’t have the words to say anus but certainly can tell us how owie it hurt her.” Applicable Law We review de novo a claim that the trial court was required to give a unanimity instruction. (People v. Sorden (2021) 65 Cal.App.5th 582, 616.) The jury in a criminal case “must agree unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, “[a]s a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule.” (People v. Jennings (2010) 50 Cal.4th 616, 679.) As relevant here, there is no need for a unanimity instruction when a prosecutor makes “an election by ‘tying each specific count to specific criminal acts elicited from the victims’ testimony’—typically in opening statement and/or closing argument.” (People v. Brown (2017) 11 Cal.App.5th 332, 341.) 10  A unanimity instruction was not required here because the record reveals that the prosecutor elected the licking incident for the count 5 oral copulation charge. When she began her argument for count 5, the prosecutor explained that the charge was “different than all the rest.” After providing a summary of the law for oral copulation, the prosecutor showed a video of J.J. saying that M.B. had licked defendant’s penis. The power point slide with J.J.’s interview clip prominently displayed the title “COUNT 5 – ORAL COPULATION.” The prosecutor’s comments in closing argument and use of the power point slide are enough to establish that she elected the licking incident for the count 5 oral copulation charge. Indeed, even defense counsel understood the election made by the prosecutor because when he addressed the count 5 charge in closing argument, counsel said, “So the next count that I want to go to is count 5 and this is the -- oral copulation. This is -- this is where J.J. said that M.B. licked his dad’s penis.” Defendant’s contention that this is not a sufficient election by the prosecutor under Melhado is unpersuasive. In Melhado, the defendant was charged with making terrorist threats to an auto repair shop owner. (People v. Melhado, supra, 60 Cal.App.4th at pp. 1532-1533.) The defendant visited the shop at 9:00 a.m. and then again at 11:00 a.m., making threats each visit and carrying what appeared to be an operable grenade during the second visit. (Id. at p. 1533.) Outside the jury’s presence, the prosecutor elected to rely on the 11:00 a.m. incident for the terrorist threats charge. (Id. at p. 1535.) During closing argument, however, the prosecutor discussed both incidents, emphasizing the 11:00 a.m. incident, but never explicitly informing the jury of his election. (Id. at p. 1536.) The trial court did not give a unanimity instruction. (Id. at p. 1532.) The appellate court reversed, concluding that the trial court should have instructed on unanimity because each incident was sufficient to establish criminal liability and the prosecutor failed to clearly communicate to the jury which incident it should consider as the basis for conviction. (Id. at pp. 1536-1539.) Here, by contrast, the prosecutor told the 11 jury of her election for count 5 by focusing only on the facts supporting the licking incident through the clip of J.J.’s interview. The prosecutor’s election did not become ambiguous because of any comments made about oral copulation during rebuttal closing argument. It is true that the prosecutor did not attach her oral copulation statements in rebuttal to a specific count. However, when read in the context of the prior arguments by both parties, it is evident that these rebuttal comments were related to the count 6 enhancement and not intended to suggest to the jury that the kissing incident could or should have been considered for the count 5 oral copulation charge. The prosecutor began with her closing argument on count 6 by distinguishing count 6 from count 5: “So now we jump to count 6 because count 5 is the oral copulation charge.” She went a step further by reminding the jury that count 6 related to “kissing [M.B.]’s bottom.” Moving to the special allegation, the prosecutor argued that the kissing incident qualified for the substantial sexual conduct enhancement for count 6. In so doing, she argued that oral copulation had occurred for that purpose: “I submit to you, ladies and gentlemen, that whether [defendant] kissed [M.B.’s] buttocks, whether he did something else to her buttock, it qualifies as oral copulation; and that’s why I’m asking you to find true the special enhancement to count 6, substantial sexual conduct.” Defense counsel understood the prosecutor’s election for count 6 as well. When he addressed count 6, he characterized it as “part and parcel of the same incident relating to count 1, the kissing of the bottom.” He further acknowledged that the count 6 enhancement required proof of oral copulation for substantial sexual conduct. On this point, counsel argued that the jury should not find the enhancement true because M.B.’s statement that defendant kissed her bottom could mean that he either kissed M.B.’s “butt cheek” or her anus, and if it was the former, then oral copulation for purposes of this enhancement had not been proven. 12  The prosecutor responded directly to these points in rebuttal: “And I heard it in another place is that the defense attorney wants to use the adult words of butt cheeks for a little child trying to explain the places that they were touched; but I would submit to you, ladies and gentlemen, when you look at the explanation of what [M.B.] says, it felt owie because it was scratching me. [¶] That’s not someone who puts a light kiss on a baby’s cheeks, that is a person who is committing oral copulation against a child that doesn’t have the words to say anus but certainly can tell us how owie it hurt her.” Reading the rebuttal comments about oral copulation in the context of the arguments that came before it, it is evident that the prosecutor was addressing the oral copulation requirement for the count 6 enhancement and was not arguing that defendant had orally copulated M.B. for purposes of count 5. Accordingly, because the prosecutor elected the licking incident as the relevant act for count 5, there was no need for a unanimity instruction. II Evidence Code Section 1108 Defendant contends the trial court abused its discretion when it permitted defendant’s adult son, John, to testify about prior uncharged acts of sexual abuse under Evidence Code sections 1101 and 1108. According to defendant, John’s testimony was speculative, confusing, and remote and should have been excluded under Evidence Code section 352. Before trial, the prosecutor filed a motion in limine asking the trial court to admit John’s testimony of prior uncharged sexual acts under Evidence Code sections 1101, subdivision (b), and 1108. In an Evidence Code section 402 hearing, John testified that although he did not have “direct memories” of it, he believed that defendant had sexually abused him. He recalled seeing an article about a nude beach, pornography magazines on the back of the toilet, and being naked at defendant’s house when he was a child. He had also taken 13 showers with defendant and his stepmother and did things that “maybe didn’t seem quite right.” As he got older, he discussed his childhood with defendant. Defendant told John that John had orally copulated him at least once when he was a child. The trial court granted the prosecutor’s motion in limine with the caveat that his trial testimony be limited to childhood incidents; the conversation with defendant as an adult about oral copulation was not “relevant” to the case so was not “allowed.” At trial, John said he had no specific memories of sexual abuse with defendant, but he was naked a lot at defendant’s house, saw a news article about a nude beach, and found pornography magazines in the bathroom. He also showered with defendant and his stepmother where he believed “something sexual” happened. Notwithstanding the trial court’s ruling on the motion in limine that John’s conversation with defendant when John was an adult concerning oral copulation would not be allowed, John also testified that defendant told him that he had orally copulated defendant when he was a child. There was no objection. “ ‘[E]vidence of a person’s character’ is generally inadmissible ‘when offered to prove his or her conduct on a specified occasion.’ ” (People v. Baker (2021) 10 Cal.5th at p. 1088, quoting Evid. Code, § 1101, subd. (a).) “That general rule does not ‘prohibit[] the admission of evidence that a person committed a crime ... or other act’ to prove something other than a person’s ‘disposition to commit such an act.’ ” (Ibid.) “For example, other-acts evidence may be admissible to prove motive, intent, or that ‘a defendant in a prosecution for an unlawful sexual act ... did not reasonably and in good faith believe that the victim consented.’ ” (Id. at pp. 1088-1089.) “The general rule against admission of ‘so-called “propensity” or “disposition” evidence’ is also subject to exceptions.” (Id. at p. 1089, quoting People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 822.) 14  “Evidence Code section 1108 provides an exception to the general rule and permits evidence that a defendant accused of a sexual offense has committed another sexual offense, potentially showing a propensity to do so.” (Baker, supra, 10 Cal.5th at p. 1089, citing Evid. Code, § 1108, subd. (a).) Evidence Code section 1108 applies “only if the evidence ‘is not inadmissible pursuant to [Evidence Code] Section 352.’ ” (Baker, at p. 1089; Evid. Code, § 1108, subd. (a).) “ ‘In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.’ ” (People v. Loy (2011) 52 Cal.4th 46, 63, quoting People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) “Or, as another court put it, ‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.’ ” (Loy, at p. 63, quoting People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) In a criminal action in which defendant is accused of sexual offenses, evidence of defendant’s commission of a prior sexual offense is not made inadmissible by Evidence Code section 1101 “if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “Trial courts enjoy ‘ “broad discretion” ’ in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of discretion ‘will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently 15 absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) In considering whether to admit evidence of prior sex offenses under Evidence Code section 1108 based on a weighing of the Evidence Code section 352 factors, “trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 917.) John’s testimony was highly probative on the central factual disputes in this case regarding whether defendant committed lewd and lascivious acts with M.B. and J.J. and oral copulation with M.B. Like M.B. and J.J., John had been frequently naked in the home with defendant. Also, like M.B. and J.J., John had seen defendant naked. J.J. saw M.B. lick defendant’s penis and defendant told John that John had orally copulated him when he was a child. Although we acknowledge the trial court’s ruling to exclude John’s testimony about John’s conversation with his father after John was an adult about John’s oral copulation of his father, we may nonetheless consider it here because it was neither challenged in the trial court nor has it been challenged on appeal. On these bases, the prior sexual acts with John were highly probative of whether defendant acted in conformity with his prior conduct by engaging in sexual acts with John. Despite the highly probative nature of the evidence, defendant contends that it should have been excluded because John’s testimony about the prior sexual conduct was speculative. Because John failed to provide any concrete details about the sexual abuse, 16 defendant concludes that his testimony was also confusing to the jury and should have been excluded under Evidence Code section 352. As we have noted, one factor a trial court may consider in determining whether to exclude evidence of a prior sexual offense under Evidence Code section 352 is the “degree of certainty of its commission.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Based on the circumstances presented here, we do not believe that John’s inability to recall specific sexual conduct by defendant when he was a young child renders the testimony so speculative or confusing that it should have been excluded. John testified that he remembered being in the shower with defendant and his stepmother and believed something “sexual” happened on those occasions. He also recalled seeing pornography and being naked frequently at defendant’s house. Although John could not remember specific instances of sexual abuse, the trial court nonetheless could reasonably conclude that John’s youth at the time he was victimized provided a reasonable explanation for his inability to recall exact details. The trial court could also reasonably conclude that it would be unjust to allow defendant to benefit from the fact that John was too young at the time he was sexually abused to have specific memories of the abuse. Given the highly probative nature of John’s testimony, the trial court acted within its discretion to decide that any prejudice caused by its speculative nature was outweighed by the probative value of the evidence. Nor are we persuaded by defendant’s argument that the sexual offenses inflicted upon him by his father were too remote in time to be probative. “No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible” (People v. Branch (2001) 91 Cal.App.4th 274, 284), and “substantial similarities between the prior and the charged offenses” may serve to “balance out the remoteness of the prior offenses” (id. at p. 285). As described at trial, the sexual acts with John occurred between 1983 and 1989, which was between 33 and 39 years prior to the incidents with M.B. and J.J. 17  Numerous courts have upheld admission of prior sexual crimes under Evidence Code section 1108 that occurred decades before the current offenses. (People v. Robertson (2012) 208 Cal.App.4th 965, 992-993 [upheld the admission of a prior sex crime that was 34 years before the current offenses]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [upheld admission of a prior sex crime that occurred 23 years before the charged offense]; People v. Branch, supra, 91 Cal.App.4th at p. 284 [upheld admission of a prior sex crime that was committed 30 years before the current crime]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1395 [upheld admission of a prior sex crime that occurred during a period of time that was 18 to 25 years before the charged crimes]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [upheld admission of prior sex crimes 30 years before and 21 to 22 years before the current offenses].) Although the sexual acts with John occurred anywhere from 33 to 39 years before the current offenses, as we have mentioned, there are substantial similarities between the prior and the charged offenses that were at the heart of this prosecution that serve to balance out the remoteness of the prior offenses. As such, the trial court reasonably could have decided that John’s testimony was not too remote in time to be probative simply because the acts John described had taken place between 33 and 39 years prior to the trial. Accordingly, we conclude that the trial court did not abuse its discretion under Evidence Code section 352 by allowing the introduction of John’s testimony. III Sufficiency of the Evidence for Counts 1 and 2 Defendant was convicted in count 1 of forcible lewd acts on a child when he pulled down M.B.’s pants to touch her bottom. Defendant was convicted in count 2 of forcible lewd acts on a child when he “ma[de] secrets and provid[ed] treats [to M.B.] for touching [defendant’s] penis the first time.” 18  Defendant contends there is insufficient evidence of both convictions. As to count 1, defendant argues that he did not use force to commit the crime because the act of pulling down M.B.’s pants was not force that was substantially greater than necessary to commit the lewd act. As to count 2, defendant argues that there is no evidence establishing that the treats he gave M.B. or the secrets he asked her to keep were used in persuading M.B. to touch his penis the first time. Defendant also claims that, even assuming he gave treats to M.B. before she touched his penis, the act of giving treats is, at best, grooming behavior, and not legally sufficient to establish duress. This court’s role in reviewing a challenge to the sufficiency of evidence is limited. (People v. Smith (2005) 37 Cal.4th 733, 738.) When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, “we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify t