¶1Opinion
¶2In this appeal we consider a host of questions arising from the now familiar case in which the evidence establishes more crimes than were charged. Here defendant Clyde D. Gordon was convicted of one count of sodomy with a person under 16 years of age by a person over the age of 21 (Pen. Code, § 286, subd. (b)(2)), and three counts of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)). Sentenced to state prison for concurrent terms of five years on each of the four felonies, he appeals. On appeal defendant contends: (1) the sodomy count was barred by the statute of limitations; (2) as to the sodomy count and one count of lewd and lascivious conduct, the prosecution did not elect which acts it was relying upon to convict and, further, as to the sodomy count, the trial court failed to instruct on its own motion that the jury must unanimously agree on the specific act forming the basis of the verdict; (3) as to the sodomy count and one count of lewd and lascivious conduct, instructing the jury with CALJIC No. 4.71 constituted prejudicial error; (4) the sodomy conviction barred a concomitant conviction for a lewd and lascivious act potentially based on the same act; (5) defendant was denied effective assistance of counsel based on his attorney’s failure to force the prosecution to elect specific acts, to object to introduction of evidence of uncharged sex offenses, and to request limiting instructions; and (6) the trial court erred in failing to instruct, again on its own motion, on appropriate lesser included offenses. We shall reverse the sodomy conviction and affirm the remainder of the judgment.
¶3Statement of the Case
¶4By an amended information filed on February 17, 1983, defendant was charged with five felony counts: one count charged sodomy on a female child under the age of 16, alleged to have occurred from on or about January 1, 1979, through November 30, 1980 (Pen. Code, § 286, subd. (b)(2), *845count I);
¶5Following a jury trial, the jury returned verdicts finding defendant guilty of the sodomy charge (count I) and three counts of lewd and lascivious conduct (counts II through IV) and not guilty of one count of lewd and lascivious conduct (count V). Probation was denied and defendant was sentenced to state prison. Defendant filed a notice of appeal on the day he was sentenced.
¶6Subsequently, the sentence was recalled pursuant to section 1170, subdivision (d), and defendant was resentenced to a total of five years: the upper term of three years on count I and the upper term of five years on counts *846II, HI and IV, all terms to be served concurrently. He was also given credit for time served and good time/work time. Defendant timely filed a second notice of appeal and the two appeals were consolidated by stipulation.
¶7Statement of Facts
¶8A. Counts I (Sodomy) and II (Lewd and Lascivious Conduct)
¶9Marla M., who was nine years old when she testified at trial, was living during the period in question in Little Valley, California with her mother Gloria Gordon, then Gloria Ruiz, and Robert Ruiz, her mother’s husband. She was then five or six years old and in kindergarten and first grade. Defendant and his family moved to Little Valley in December 1977. Defendant, who was later to become Marla’s stepgrandfather, and his wife Willa lived just up the street from Marla and they were paid to babysit Marla on a regular basis. Both he and his wife babysat Marla after school and on weekends. Defendant’s sexual misconduct with Marla began at the earliest time in the beginning of 1978. Marla testified to general, unspecified instances as well as more specific instances when defendant sexually touched her when she lived in Little Valley.
¶10The general instances were these: (1) When Marla rode with defendant in his pickup truck, defendant would make Marla sit next to him and would rub her thighs with his hand. (2) From kindergarten to about third grade, defendant touched Marla “lots of times;” “there’s so many times he did it, I can’t remember them all.” These touchings were done in “different ways sometimes.” (3) Defendant also touched Marla’s bottom with his penis (“long thing”) twice. (4) Defendant touched Marla’s vagina (where she “pass[es] water”) with his penis many times, at least more than five times.
¶11Marla also recounted these specific instances: (1) When Marla was in either kindergarten or first grade, in 1978 to 1979, and while defendant and his wife were babysitting her, defendant took Marla into the tack room at his residence, took off her underpants and touched her vagina, chest, and “bottom” with his hands. Defendant also put his penis (“his long thing with the two round things”) inside of her vagina. Marla thought Willa knew about the incident because Willa was just out in the garden when Marla yelled in protest. (2) On two other occasions defendant touched his penis to Marla’s anus. On one occasion, date and place not specified, defendant tried to put his penis in her anus and she hollered and cried because it hurt. Defendant kept trying for a few minutes and then stopped. On the second occasion, Marla was camping with defendant and a man named Stan. Marla and defendant slept inside defendant’s camper; Stan slept outside. One night defendant tried to put his penis inside her anus; it again hurt and Marla *847cried and hollered. Defendant told Marla that if she told anyone he would hurt her mother. She was afraid defendant would carry out the threat.
¶12Marla’s mother, Gloria, testified as a prosecution witness. Gloria married defendant’s son, Richard Gordon, on August 4, 1979. All the events described by Marla occurred before this date. Marla first told her mother about defendant’s conduct in November or December of 1980 when Gloria asked Marla if she would like to stay with defendant and Willa while she and Richard went to look for work. Marla stated she would not like that. When pressed for her reasons, she told Gloria what had been happening. Gloria confronted defendant later that evening. According to Gloria, defendant neither admitted nor denied the accusation, but instead turned to Marla and asked “Why did you tell your momma?” The next day, Gloria told her neighbors Barbara Hitchcock and Melissa Turner that defendant had sexually abused Marla. She did not go to the police because her husband Richard told her that if she put his father in jail she better file for divorce. She did not want to break up her marriage. Gloria consequently did not report the incidents to the police until March 1982. Later Gloria went to Oregon to avoid being subpoenaed because defendant’s wife was pressuring her and because Marla did not want to testify. At one point, Gloria wrote a letter to defendant trying to get him to give her ownership of his truck or $500 and threatening him with prosecution.
¶13According to Gloria, prior to her trip to Oregon with Marla and after charges were filed, defendant told Gloria he did not hurt any other little girls and was sorry for what had happened to Marla. He stated he would get psychiatric help.
¶14B. Counts III and TV (Lewd and Lascivious Conduct)
¶15Brandy W., who was eleven years old when she testified, was approximately seven years old when defendant and Willa babysat her and her brother. Approximately one week prior to December 22, 1978, the date of a friend’s birthday party, Brandy was in defendant’s backyard in Little Valley when defendant took her behind the barn during the daytime and stuck his hand down her pants and touched her vagina. Brandy was afraid and did not tell anyone what happened.
¶16On another occasion, one night either two days before or after the other incident, Brandy accompanied defendant in his truck to get Willa a soda. Defendant turned off a private road (Skunk Hollow Road) in Little Valley, got out of the truck, opened the passenger door, told Brandy to lie down, pulled down her pants and touched or “stuck his penis in [her] vagina.” Defendant told Brandy to tell Willa that they had just gone to a bar.
¶17*848Brandy told her friend Candice about one or both incidents while she was at the party. Candice in turn told the mother of the child who was having the party. When Brandy was questioned by this woman, she remained silent. Brandy’s mother, Barbara Hitchcock, was informed what happened the following day. Barbara initially did not call the police because it was “really hard to believe” and she thought “it would be better for her just to forget about it.” However, she changed her mind sometime later when she saw defendant riding in his truck with a six-year-old mentally retarded girl.
¶18C. Defense
¶19Stanley Stahl testified that in July 1979 he went prospecting for gold with defendant and Marla. As he and defendant were leaving for the trip, Marla cried and said she wanted to come along. Defendant let her come. On each of the three nights Marla slept in the camper and the two men slept outside. Stahl, who was a light sleeper, never heard defendant get up and go into the camper. Marla appeared to be very happy throughout the trip.
¶20Stahl and two others testified that the private road (Skunk Hollow Road) down which Brandy stated defendant drove his pickup before molesting her was virtually impassable during the winter.
¶21Willa Gordon, defendant’s wife, testified that when Gloria accused defendant of molesting Marla, he said he had never touched her. Later defendant told Gloria he had never touched Marla or any of the other girls and that he was sorry for “everything that was going on.”
¶22Defendant testified that he was 51 years old and had never molested Marla. He told Gloria he never molested her daughter or any other girls in Little Valley, and that he was “sorry ... it was busting up her family . . . .” Defendant also said he was never alone with Brandy and never molested her. He related that he and Gloria had an argument regarding her use of his telephone and that Gloria stated, “I’ll get even with you, Clyde Gordon.” Defendant believes Gloria concocted the whole story.
¶23D. Rebuttal
¶24Evidence was presented that the first 200 yards or so of Skunk Hollow Road is passable during the winter and that in December 1978 the entire road was hard and frozen.
¶26I
¶27Defendant contends that count I of the amended information, charging him with sodomy in violation of section 286, subdivision (b)(2)'between January 1, 1979, and November 30, 1980, was barred by the three-year limitations period of section 800. We agree.
¶28Defendant correctly points out that Marla testified to two incidents of sodomy and that she also testified that all the sexual incidents involving defendant occurred before her mother married Richard Gordon on August 4, 1979. She testified as to one incident without specifying its location or date. On that unspecified occasion defendant tried to put his penis (“long thing”) in her anus (“bottom”) and it hurt; he “kept it on for a few minutes,” and then stopped.
¶29This statute of limitations contention first poses the question whether, for purposes of stopping the statute, the commencement of the prosecution should be measured from the date that the information was filed (§ 800, as amended by Stats. 1978, ch. 663, § 8, pp. 2133-2134) or from the earlier date when the arrest warrant was issued. (§ 800, as amended by Stats. 1981, ch. 1017, § 1, p. 3925.)
¶30During the years 1978, 1979 and 1980 the statute of limitations for the crime of sodomy was three years. Penal Code section 800 then provided that “[a]n indictment for any felony, [except for crimes not relevant here], *850shall be found, an information filed, or case certified to the superior court within three years after its commission.” (Stats. 1975, ch. 1047, § 1, p. 2466; Stats. 1978, ch. 663, § 8, pp. 2133-2134.) The original information was filed on February 16, 1983, and was amended the next day.
¶31Effective January 1, 1982, the limitations statute was again amended. Section 800, subdivision (a) again prescribed a three-year limitations period for section 286, subdivision (b) violations.
¶32But to the extent that the evidence showed that an act of sodomy occurred in 1978, a time outside the period alleged in the information, the old statute must govern because it necessarily expired before the effective date of the new amendment. The statute of limitations for sodomy committed in 1978 expired three years later in 1981 and the amendment in question was not effective until January 1, 1982. The information was not filed until February 16, 1983, and hence any act of sodomy committed in 1978, more than three years before the filing of the information, was time barred. Thus whether the sodomy offense occurred in 1978 and the measurement is from its commission to the filing of the information and whether it occurred after January 1, 1979, but before April 30, 1979, and the measurement is from its commission to the date the warrant issued, the sodomy charge was still untimely. Because no date was given for the first incident described above, and because it could have occurred after January 1, 1978, the period when the *852sexual misconduct first began, or even after January 1, 1979, the beginning of the period designated in count I, but before April 30, 1979, three years prior to the date the arrest warrant was issued, the People have failed to prove that the crime could only have occurred inside the applicable three-year limitations period. As Justice Peters noted for the Court of Appeal in People v. Allen (1941) 47 Cal.App.2d 735, 748 [118 P.2d 927], “[t]he fact that the statute of limitations is jurisdictional necessarily determines that a prosecution within the period specified is an essential element of the offense.” It follows therefore that the burden is on the People to prove that the charged offense occurred within the period of limitations. (People v. Mack (1959) 169 Cal.App.2d 825, 829 [338 P.2d 25].) Here the prosecution proved two acts of sodomy, one possibly barred by the statute and the other not. In the absence of an appropriate instruction, that equivocal proof fails as a matter of law to overcome the prosecution’s burden.
¶33II.
¶34Defendant next contends that he was denied due process because the jury was not instructed which acts the prosecution was relying upon to prove counts I (sodomy) and II (lewd and lascivious act upon Marla). There are two facets to this asserted error: First, was the prosecution required to elect the particular act it was relying upon to make good the allegation in the information? Second, when the jury was presented with more than one factual basis which might constitute the crime charged, should it have been instructed along the lines of CALJIC No. 17.01 that it had to unanimously agree upon the commission of the same act or acts constituting the crime?
¶35*853There has been a recent effluence of cases dealing with the problems arising when a violation of a criminal statute is charged and the evidence describes several acts, any one of which could constitute the crime charged. (See People v. Metheney (1984) 154 Cal.App.3d 555 [201 Cal.Rptr. 281]; People v. Dunnahoo (1984) 152 Cal.App.3d 561 [199 Cal.Rptr. 796]; and People v. Deletto (1983) 147 Cal.App.3d 458 [195 Cal.Rptr. 233]), adding to an already long line of cases (People v. Diedrich (1982) 31 Cal.3d 263 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Williams (1901) 133 Cal. 165 [65 P. 323]; People v. Castro (1901) 133 Cal. 11 [65 P. 13]; People v. Epps (1981) 122 Cal.App.3d 691 [176 Cal.Rptr. 332]; People v. Alva (1979) 90 Cal.App.3d 418 [153 Cal.Rptr. 644]; People v. Moreno (1973) 32 Cal.App.3d Supp. 1 [108 Cal.Rptr. 338].)
¶36Emerging from this long line of cases is the so-called “either/or” rule: when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5
¶37*854Turning to this cáse, we note that while no election of a specific act was made, an instruction in the form of CALJIC No. 17.01 was given for the counts for lewd and lascivious conduct.
¶38We turn next to the sodomy charge. As we have noted earlier, count I alleged the commission of the crime of sodomy between January 1, 1979, and November 30, 1980. As we have recited, Marla testified to two incidents of sodomy or attempted sodomy. Defendant made no request for an election and the trial court on its own did not require the prosecution to select a specific act and date. Moreover, as to this crime, the jury was not instructed in the language of CALJIC No. 17.01, or similar language, that in order to convict defendant of sodomy it must unanimously agree on a particular act. We consequently hold that the prosecution’s failure to elect between the two acts testified to by minor, and arguably forming the basis of the sodomy allegation in count I, and the court’s failure to instruct, sua sponte, on the unanimity requirement with respect to a particular act constitute error. (People v. Diedrich, supra,31 Cal.3d at p. 280; People v. Dunnahoo, supra,152 Cal.App.3d at p. 570; People v. Madden (1981) 116 Cal.App.3d 212, at pp. 218-219 [171 Cal.Rptr. 897].)
¶39We note also that the “continuous course of conduct” exception to the “either/or” rule is not applicable here. This exception arises when the criminal acts are so closely connected that they form part of one and the same transaction, and thus one offense. (People v. Mota (1981) 115 *855Cal.App.3d 227, 233 [171 Cal.Rptr. 212].)
¶40Does this error require reversal? The Chapman standard (whether the error was harmless beyond a reasonable doubt [Chapman v. California (1967) 386 U.S. 18, 24 (17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065)]), it has been held, must be applied when error is based on failure to instruct with CALJIC No. 17.01, or its equivalent. (People v. Metheney, supra,154 Cal.App.3d at pp. 563-564; People v. Dunnahoo, supra,152 Cal.App.3d at p. 574; People v. Deletto, supra,147 Cal.App.3d at pp. 471-472.)
¶41In Diedrich, the Supreme Court, after holding that the trial court’s refusal to give CALJIC No. 17.01 constituted error, considered the prejudicial effect of the error: “The next question is whether the error was prejudicial. We feel bound to hold that it was. This is not a case where the jury’s verdict implies that it did not believe the only defense offered. Diedrich’s defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were ‘explained. ’ Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial.” (People v. Diedrich, supra,31 Cal.3d at pp. 282-283, italics added.) Under the Diedrichanalysis, the test for harmless error is whether the case is one in which the jury’s verdict necessarily implies that it did not believe the only defense offered. (See People v. Metheney, supra,154 Cal.App.3d at p. 564; People v. Deletto, supra,147 Cal.App.3d at p. 466.)
¶42In the present case, we cannot say the error was harmless. Marla testified to two distinct and distinguishable acts: (1) The first act, for which no date was given, involved a sodomy or attempted sodomy that lasted several min*856utes and hurt. (2) The second act occurred during a camping trip, fixed by another witness in July 1979; there was no indication as to the length of time of the sodomous conduct, but it hurt. Defendant’s common defense to both the first and second acts was a general denial that he ever molested Marla and an assertion by defendant that the whole story had been concocted (namely because Gloria was trying to blackmail defendant; was being given the choice between testifying against defendant or facing criminal charges for welfare fraud; and had an argument with defendant concerning her use of his telephone during which Gloria said “I’ll get even with you, Clyde Gordon.”). However, with regard to the camping trip incident, the defense also presented a second defense by introducing evidence that defendant slept outside the camper and did not have the opportunity to be alone with Marla in the camper during the entire trip. Moreover, we note that the first act was distinguishable from the second act insofar as Marla testified that defendant’s first act lasted several minutes while no duration was assigned to the second act. This testimony could have been crucial on the issue of penetration. (See § 287.)
¶43Because some of the jurors may have believed the lack of opportunity defense to the second act, and other jurors not, and because some jurors may have believed there was penetration with respect to the first act of sodomy but not the second, and others not, we must conclude, there being more than one defense offered, that the jury verdict does not establish beyond a reasonable doubt that the jury rejected the same or only defense offered. (See People v. Epps, supra,122 Cal.App.3d at p. 695 [failure to give CALJIC No. 17.01 required reversal where defendant, convicted of one count of child molesting (Pen. Code, § 647a), had various explanations for different acts of alleged molestation]; People v. Alva, supra,90 Cal.App.3d at pp. 421-423 [defendant charged with one count of incest (Pen. Code, § 285) and the minor testified to acts of intercourse regularly between February and July and the minor’s brother, who provided defense testimony, moved into the house in May].) Moreover, because the jury could have accepted one of the defenses and not another, e.g., no penetration on the second occasion, there is no basis in reason for the inference that the jury must have believed beyond a reasonable doubt that defendant committed both acts of sodomy. (Cf. People v. Deletto, supra,147 Cal.App.3d at p. 473 [failure to give CALJIC No. 17.01 held harmless error where both acts described by the minor clearly constituted unlawful acts of oral copulation].) We conclude that as to the sodomy count (count I) the trial court committed reversible error by failing to instruct the jury using CALJIC No. 17.01 or an equivalent. Thus, even if we had not concluded that the sodomy count was barred by the statute of limitations, we would be compelled to reverse that count for this instructional error.
¶45Defendant next contends that in relation to counts I and II it was error to give CALJIC No. 4.71 and not No. 4.71.5.
¶46“Where a defendant is charged in a single count, and the evidence shows more than one criminal act of the kind alleged, it is error to give CALJIC No. 4.71 because it does not require the jury to focus on a specific criminal act and to convict a defendant of that act beyond a reasonable doubt. The appropriate instruction, CALJIC No. 4.71.5, plays the same role as CALJIC No. 17.01 to the extent it requires the jury to agree beyond a reasonable doubt defendant committed the same act. . . . CALJIC No. 4.71 hypothetically [would] allow[] the jury to reach a nonunanimous verdict.” (People v. Deletto, supra,147 Cal.App.3d at pp. 474-475; citations omitted.)
¶47Nevertheless, we conclude that the error was cured here as to count II because the court also instructed the jury in the language of CALJIC No. 17.01. CALJIC Nos. 4.71 and 17.01, read in conjunction, are not inconsistent: they instruct a jury confronted with an “on or about” allegation that while it need not find that the crime was committed on the precise date alleged (CALJIC No. 4.71), it must nonetheless unanimously agree that defendant committed the same act. (CALJIC No. 17.01.) Combined, these two instructions adequately instruct the jury on the point.
¶48IV
¶49Defendant next contends he was denied effective assistance of counsel because his attorney failed to: (1) force the prosecution to elect among the multiple sex acts testified to by victim Marla and forming the basis of counts *8581 and II; (2) move to exclude the evidence of all nonelected, uncharged sex acts; and (3) request limiting instructions (CALJIC Nos. 2.50, 10.35, 10.54, for instance) on the jury’s use of uncharged sex acts, even assuming their admissibility. In our view, defendant’s argument is unavailing.
¶50In establishing ineffective assistance of counsel, the burden is on the defendant to show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, which failure resulted in the withdrawal of a potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) This test has been expanded under People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144], to add that a defendant may also establish incompetence of counsel by proving that counsel failed to perform with reasonable competence and that it is reasonably probable that a more favorable result would have been forthcoming in the absence of counsel’s alleged failings.
¶51At the outset, our review of trial counsel’s competency is limited to the record before us because defendant has not filed a corresponding petition for habeas corpus which could admit evidence outside the record on this issue. (See People v. Pope, supra,23 Cal.3d at pp. 426-427, fn. 17; People v. Apodaca (1978) 76 Cal.App.3d 479, 489, fn. 3 [142 Cal.Rptr. 830].)
¶52Failure to move for election.
¶53The election issue involves only counts I and II. Since count I has already been reversed, we once again consider the issue only as to count II. To resolve the issue with respect to that count, we quote People v. Dunnahoo, supra,152 Cal.App.3d at page 576, where the court addressed a nearly identical argument; “[S]ince Dunnahoo’s only legitimate defense was one of credibility, failure of his counsel to force an election does not amount to ineffective counsel. The prosecution witnesses’ credibility was tested by thorough cross-examination. Pursuant to predetermined trial strategy, Dunnahoo took the stand and also contradicted their testimony. The jury was given the CALJIC No. 17.01 unanimity instruction. Thus, on this issue, his trial counsel acted in a manner expected of a reasonably competent attorney.”
¶54Here, as in Dunnahoo, defendant’s primary defense, at least on count II, was one of credibility. Victim Marla and her mother were cross-examined by defense counsel. Defendant took the stand and generally denied the accusations. Finally, the jury was instructed in the words of CALJIC No. 17.01. Since the posture of the case required the jury either *859to find that all of the lewd acts occurred or none of them did, no useful purpose would have been served by attempting to force the prosecution to an election. We conclude, as did the Dunnahoocourt, that defense counsel was not incompetent for failing to move for an election.
¶55Admission of uncharged offenses.
¶56There are three hurdles between defendant and a successful claim of ineffective assistance of counsel based on his counsel’s failure to object to the admission of evidence of uncharged acts: (1) the offenses must be uncharged; (2) the evidence must be inadmissible; and (3) it must be reasonably probable a more favorable result would have resulted in the absence of that evidence. Defendant can clear only the first two hurdles.
¶57First, an act is uncharged if it falls outside the accusatory pleading. This can happen when the act testified to either involves a different actus reus (say for robbery or arson) or occurred at a time different than the charged offense.
¶58After People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1], we must conclude that the evidence of these arguably uncharged offenses was inadmissible. Evidence Code section 1101 provides: “(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person’s character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct is inadmissible when offered to prove his conduct) on a specified occasion. [1] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, *860knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts, [t] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
¶59In Tassell, the Supreme Court dealt with a defendant who was charged with forcible rape and forcible oral copulation on a single victim. Defendant admitted the intercourse and oral copulation but denied the use of force. The prosecution produced two other females who testified to having been forcibly raped by defendant and forced to orally copulate him on occasions prior to the charged crimes. A divided Supreme Court found error, albeit nonprejudicial, in the admission of the evidence concerning the two uncharged crimes. The reasoning of the court was that since neither defendant’s identity nor his intent to have intercourse with the victim was in dispute, the evidence of the other crimes was irrelevant to any “contested issue” in the case. (Tassell, supra, 36 Cal.3d at p. 88, fn. 7 and p. 89.)
¶60Because neither identity nor intent was an issue in this case, we must also conclude, like Tassell, that evidence of any uncharged crimes was inadmissible. The defense here was not that Marla mistook defendant for another person or that the charged offenses, if believed by the jury, were committed with innocent intent. The evidence was relevant only to defendant’s disposition to act and therefore clearly contrary to Evidence Code section 1101, subdivision (a).
¶61Even granting that reasonably competent counsel would have objected to introduction of the evidence of the undated crimes on the ground that they *861constituted uncharged acts, we conclude defendant’s claim of ineffective assistance of counsel must fail because he has not proven that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsel’s failings. (People v. Fosselman, supra,33 Cal.3d at p. 584; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Since the conviction based on count I is reversed on other grounds, we apply the Watsonstandard to counts II, III and IV only.
¶62As to count II, alleging a lewd and lascivious act on Marla, she testified as to a specific act of touching and sexual intercourse occurring in defendant’s tack room and within the period, June 1978 through November 1980, alleged in count II. This was a charged act. In light of defendant’s credibility defense, nothing convinces us that the jury would have returned a more favorable verdict on count II, i.e., not guilty, in the absence of evidence of unspecified touching and sexual intercourse.
¶63As to counts HI and IV, alleging lewd and lascivious acts on Brandy W., we review the evidence against and for defendant. Brandy testified that approximately a week prior to December 22, 1978, defendant took her behind a barn on his property and stuck his hand down her pants and touched her vagina. Also, either two days before or after the above described incident, defendant drove Brandy down a private road and had sexual intercourse with her in his truck. Defendant offered evidence that the private road was impassable in the winter, which evidence was rebutted by the prosecution. The issue was essentially one of credibility, defendant’s word against Brandy’s, and the jury resolved it in Brandy’s favor. We cannot say that in the absence of the contested evidence there is a reasonable probability that a result more favorable to defendant would have been reached.
¶64Limiting instructions.
¶65Defendant argues that assuming the prosecutor had elected the specific acts it was relying upon in counts I and II and could show a legitimate purpose for introducing one or more uncharged acts, defense counsel would have been under a duty to request appropriate limiting instructions depending on the prosecutor’s theory. (For example, see CALJIC No. 2.50 (evidence of other offenses for particular limited purpose); No. 10.35 (evidence of lewd acts on same child to show intent); No. 10.54 (evidence of uncharged sodomy to show disposition or intent).)
¶66Because we have concluded that the evidence of uncharged acts was subject to objection and was inadmissible, we need not address the further contention that defendant’s counsel erred in not requesting limiting instructions. Limiting instructions would not have cured counsel’s failure to object *862to the evidence. As discussed above, counsel’s failure to object, however, did not constitute ineffective assistance of counsel because the mistake by counsel was harmless.
¶67V
¶68Finally, defendant contends that the trial court erred in failing to instruct on lesser included offenses on its own motion. We need only discuss this contention with respect to counts II, III and IV. On those counts, we reject defendant’s argument.
¶69In People v. Wickersham (1982) 32 Cal.3d 307 [185 Cal.Rptr. 436, 650 P.2d 311], the Supreme Court discussed generally the obligation of trial courts to instruct, sua sponte, on lesser included offenses and defenses: “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. ” That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. . . . ’ In People v. Flannel (1979) 25 Cal.3d 668, 684-685, footnote 12 [160 Cal.Rptr. 84, 603 P.2d 1], the lead opinion . . . stated that the court need only give the instruction if the accused proffers evidence sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded” ’ that the particular facts underlying the instruction did exist. . . . [H] Flanneldid not directly discuss the standard to be utilized in determining when the court has a duty to instruct sua sponte on necessarily included offenses. However, logic would seem to require that the same standard should generally apply. The trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses.” (Id., at pp. 323-325; citations omitted.)
¶70On count n, defendant urges that the trial court erred in failing to instruct, sua sponte, that attempted sodomy, sodomy, unlawful sexual intercourse and misdemeanor child molestation are lesser offenses included within the crime of lewd and lascivious conduct. (§ 288, subd. (a).) Strictly speaking, neither sodomy nor unlawful sexual intercourse are lesser included offenses *863of the crime of lewd and lascivious conduct.
¶71It is true that, by statutory definition, one can violate section 288 by committing “any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code ....”(§ 288, subd. (a); underscoring added.)
¶72Misdemeanor child molestation (§ 647a), however, is a lesser included offense of section 288. (People v. Poon (1981) 125 Cal.App.3d 55, 80 [178 Cal.Rptr. 375]; People v. La Fontaine (1978) 79 Cal.App.3d 176, 183 [144 Cal.Rptr. 729].) However, no instruction on the lesser offense of child molestation was required in this case because if defendant was guilty at all, he was guilty of the greater offense. (People v. Wickersham, supra,32 Cal.3d at pp. 323-324; People v. Reeves (1980) 105 Cal.App.3d 444, 453-454 [164 Cal.Rptr. 426].) Here defendant was either innocent of the charge under section 288 (i.e., the jury believed his word) or he was guilty of of that charge (i.e., the jury believed Marla). We further note that the giving of an instruction on misdemeanor child molestation, when not requested by the defense, would have been inconsistent with defendant’s defense, which was a complete denial of committing any sexually related acts upon Marla. For both of these reasons, we hold that the court did not err in failing to instruct, sua sponte, on the lesser offense of child molestation.
¶73Counts HI and IV allege lewd and lascivious acts on Brandy W. in violation of section 288. Count HI alleges a violation “on or about December *8651 through 22, 1978;” count IV a violation “on or about December 22, 1978.” At trial, Brandy testified to two incidents involving defendant and occurring within two days of one another: First, defendant took her behind a bam and put his hand down her pants and touched her vagina; second, defendant drove her to a private road in his pickup truck, had her lie down on the seat, pulled down her pants and “stuck his penis in [her] vagina.” Because of the manner of charging and Brandy’s uncertainty as to which incident occurred first, it was impossible for the jury to determine which count was based on the alleged touching and which count was based on the alleged sexual intercourse. We likewise cannot distinguish between the counts and so, for reference purposes, will refer to them separately as the “touching count” and the “sexual intercourse count.”
¶74As to the “sexual intercourse count,” we have already noted that unlawful sexual intercourse (§ 261.5) is not a lesser offense necessarily included within section 288. The trial court consequently did not err by declining to instmct the jury on its own motion on that crime as a lesser included offense.
¶75On the “touching count,” defendant urges that the trial court erred in failing to instmct, sua sponte, on misdemeanor child molestation. Brandy testified that defendant escorted her behind the barn, reached his hand down her pants, and touched her vagina. Defendant simply denied doing the act. For the same reasons we rejected this contention as it related to count II, we again reject it on counts III and IV.
¶76Conclusion
¶77The judgment of conviction for sodomy in violation of section 286, subdivision (b)(2) as charged in count I of the amended information is reversed with directions to the trial court to dismiss this count. The trial court is further directed to prepare and forward an amended abstract of judgment to the Department of Corrections reflecting this dismissal. In all other respects, the judgment is affirmed.
¶78Regan, Acting P. J., concurred.
¶79This count was defectively pled in, that it alleged that defendant was more than 10 years older than the victim rather than alleging that he was over 21 years of age. However, because no demurrer was filed, this defect was waived. (Pen. Code, § 1012.) Moreover, contrary to the pleading, the testimony established that an act of sodomy occurred at the earliest in the beginning of 1978 and at the latest on August 3, 1979. In 1978 and 1979 Penal Code section 286, subdivision (b)(2) provided: “Any person over the age of 21 years who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.” (Stats. 1977, ch. 490, § 1, p. 1613.) Sodomy at all relevant times was defined as “sexual conduct consisting of contact between the penis of one person and the anus of another person.” (§ 286, subd. (a).) Some sexual penetration, however slight, is required to complete the crime of sodomy. (Pen. Code, § 287.)
¶80Effective January 1, 1980, the phrase “Except as provided in Section 288” was added to this subsection. The effect of that amendment is explained in Comment, Review of Selected 1979 California Legislation (1980) 11 Pacific L.J. 259, 430. Because no act of sodomy occurred in 1980, that amendment has no effect on this case and we do not further consider it.
¶81The record also irrefutably established that the victim of the sodomy charge was five or six years old when assaulted and that the defendant was over forty-seven years old. Given these facts, and giveh further the fact that he was charged with one count of lewd conduct on a child under 14 involving the same victim, it is inexplicable that defendant was not charged with sodomy of a person under 14 years old in violation of Penal Code section 286, subdivision (c).
¶82In 1978 Penal Code section 288, subdivision (a) read: “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, four or five years.” (Stats. 1976, ch. 1139, § 177, pp. 5110-5111, operative July 1, 1977.) Effective January 1, 1979, the punishment was increased to three, five or seven years. (Stats. 1978, ch. 579, § 17, p. 1984.) The punishment remained at that level until January 1, 1982, when the statute was once again amended to increase the punishment to its present level of three, six or eight years. (Stats. 1981, ch. 1064, § 1, p. 4093.)
¶83Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
¶84Since defendant was acquitted of the charges contained in count V of the amended information, no facts pertaining to that count are set forth.
¶85At the preliminary hearing, Marla related that this incident occurred in defendant’s truck on a road from Little Valley. The Attorney General concedes that Marla testified at trial that she had been sodomized twice by defendant. He then inconsistently argues that the only sodomizing experience Marla testified to occurred on the camping trip. (Ibid.) In our view, the record of Marla’s trial testimony can only be read as describing two separate incidents of sodomy occurring on different dates.
¶86Effective January 1, 1985, the Legislature comprehensively revised the statute of limitations for all crimes. (See Stats. 1984, ch. 1270, § 2.) Section 804 now provides that for purpose of the statute of limitations prosecution for an offense “is commenced when any of the following occurs: [|] (a) An indictment or information is filed. [1] (b) A complaint is filed with an inferior court charging a public offense of which the inferior court has original trial jurisdiction, [f] (c) A case is certified to the superior court, [fl (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint. ”
¶87For purposes of stopping the limitation period by filing an information, however, the time is calculated from February 16th, the date of the filing of the original information. When the original information is timely filed, the statute of limitation does not bar the filing of an amended information charging the same or a lesser included crime. In such a case, the amended information is deemed to relate back to the date of the original information. (People v. Daniels (1969) 71 Cal.2d 1119, 1143 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; 1 Witkin, Cal. Crimes (1963) Defenses, § 236, pp. 225-226; id., (1983 supp.) § 236B, pp. 226-227.)
¶88Like civil actions, time for purposes of the statute of limitations in criminal cases is computed by excluding the first day, the date the crime was committed, and by including the last day, when the information was filed or the arrest warrant issued, as the case may be. (People v. Twedt (1934) 1 Cal.2d 392, 399 [35 P.2d 324]; 1 Witkin, Cal. Crimes, supra, § 236, p. 226.)
¶89We note parenthetically that prior to its most recent amendment (see Stats. 1984, ch. 1270), section 800 provided a six-year limitations period for violations of subdivisions (c), (d), and (f), but not subdivision (b), of section 286, (See former § 800, subd. (b), Stats. 1981, ch. 1017, § 1, p. 3925.)
¶90Section 800, subdivision (a), as amended in 1981, provided in pertinent part: “An indictment for any felony, [except for listed crimes not charged here], shall be found, or an arrest warrant issued by the municipal or, where appropriate, the justice court within three years after its commission.” (Stats. 1981, ch. 1017, § 1, p. 3925.)
¶91This version of section 800, enacted by chapter 1017 of the 1981 statutes, was “an apparent effort to reconcile statutory law with the recent California Supreme Court decision in Hawkins v. Superior Court [(1978) 22 Cal.3d 584 [150 Cal.Rptr. 435, 586 P.2d 916], . . . Hawkinsrequires a postindictment preliminary hearing if the defendant requests. A postindictment hearing, however, may involve the same witnesses and the same case that the district attorney presented at the indictment; an expensive and duplicative effort. Allowing the statute of limitations to be satisfied by the issuance of an arrest warrant eliminates the need for an indictment to satisfy or toll the statute. ... [1] Chapter 1017 specifically *851expresses the intent of the Legislature that the issuance of an arrest warrant to toll or satisfy the statute of limitations will continue only until a decision of a court of appeal, the California Supreme Court, or an amendment to the Constitution provides that a person charged by indictment is not entitled to a preliminary hearing. Upon that occurrence, Chapter 1017 specifies that the statute of limitations will be satisfied or tolled by an information filed with, or a case certified to, the superior court within the appropriate time period.” (Comment, Review of Selected 1981 California Legislation (1982) 13 Pacific L.J. 513, 662, fes. omitted; see also former § 802.5; Uelmen, Making Sense out of the California Criminal Statute of Limitations (1983) 15 Pacific L.J. 35, 43-44, 68.) The decision in Hawkinshas not been abrogated and the quoted version of section 800 consequently remained in effect until its most recent amendment effective January 1, 1985.
¶92The Attorney General filed a “Motion to Take Judicial Notice” requesting that we judicially notice the arrest warrant issued by the justice court of the Lassen Consolidated Judicial District, a certified copy of which was attached thereto. Pursuant to Evidence Code section 452, subdivision (d), permitting judicial notice of the records of any court of this state, we grant the motion and notice the document.
¶93The jury was not instructed on the statute of limitations and hence was not informed that defendant could only be found guilty if the sodomy had been committed in 1979 and within three years before the issuance of the arrest warrant. (See CALJIC No. 4.70 (4th ed. 1979).)
¶94CALJIC No. 17.01 (4th ed. 1979) provides: “The defendant is charged with the offense of__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.”
¶95CALJIC No. 4.71.5 (4th ed. 1982 pocket pt.) provides: “Defendant is charged in [Count _of] the information with the commission of the crime of_, a violation of section_of the Penal Code, on or about a period of time between_and__ [1] 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 [or acts] constituting said crime within the period alleged. [K] And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged. [U] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”
¶96In People v. Dunnahoo, supra,152 Cal.App.3d 561, defendant was charged with and convicted of two counts of lewd conduct with a child (Pen. Code, § 288, subd. (a)) and two counts of orally copulating a person under the age of 14 (Pen. Code, § 288a, subd. (c)). The charged offenses allegedly occurred over a seven-month period. At trial, the two 7-year-old victims testified to more than four unlawful sexual acts. Defendant made no request for an election by the prosecution as to which of the acts testified to by the victims were to be relied upon as proof of the charged offenses. The jurors, however, were instructed using CALJIC No. 17.01 that they must agree unanimously on which unlawful sex acts defendant committed. The Court of Appeal affirmed and held that the demands of due process—that an accused be notified of the charges against him so that he will have a reasonable opportunity to prepare and present his defense—did not require the prosecution to elect the particular sex acts relied upon as proof of the charged offenses when an unanimity instruction had been given and neither alibi nor wrongful identification was offered as a defense. (Id., at pp. 571-572.)
¶97A further aspect of the rule is that, when no election is formally made, it is presumed that the first offense upon which substantial evidence is introduced is the one selected. (People v. Metheney, supra,154 Cal.App.3d at p. 563; People v. Epps, supra,122 Cal.App.3d at p. 702.) In order for this presumption to operate, however, the jury must be so informed. (Ibid.) Here, the jury did not receive such an instruction.
¶98The jury was instructed with respect to Violation of Penal Code section 288: “The defendant is charged with the offenses of committing a lewd act with a child. 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.”
¶99For the reasons stated there, we agree with the concurring opinion that the trial court has no sua sponte duty to compel the prosecution to select the specific act relied upon for a conviction under a particular count. In the absence of a request for election by the defendant, the “either/or” rule applies and the court, instead of forcing a prosecutorial election, may simply instruct the jury that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. Since the defendant here did not request any election by the prosecution, we need not address the question, insightfully discussed at length in the concurring opinion, whether the trial court is duty bound to honor such a request in all cases.
¶100This exception also arises when the statute contemplates a course of conduct consisting of a series of acts over a period of time. (See, e.g., People v. Ewing (1977) 72 Cal.App.3d 714, 717 [140 Cal.Rptr. 299].) Thus this exception “has been used with statutes susceptible of such an interpretation, e.g., child abuse, failure to provide for a minbr child, and pandering.” (People v. Epps, supra,122 Cal.App.3d at p. 702, citations omitted.) Sodomy obviously is not such a crime. (See People v. Madden, supra,116 Cal.App.3d at pp. 217-219, and cases cited therein.)
¶101CALJIC No. 4.71, as read to the jury, states: “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.” CALJIC No. 4.71.5 is set out in footnote 13, ante.
¶102Because we conclude that there was no instructional error and also because we reverse the sodomy conviction on other grounds, we need not address defendant’s contention that the sodomy conviction barred a concomitant conviction for lewd conduct with a child potentially based upon the same act. The question whether a defendant may be convicted of both sodomy with a child (§ 286, subd. (c)) and lewd conduct with a child (§ 288, subd. (a)) based on the same act is presently pending before the Supreme Court in People v. Pearson (Crim. 24299, hg. granted Jan. 16, 1985.)
¶103We note that more than one offense can satisfy a particular allegation and that each offense that does should be considered a charged offense. This must be the case if CALJIC No. 17.01 is a cure for a failure of the prosecution to elect a specific act under a particular count. CALJIC No. 17.01 tells a jury confronted with testimony of multiple acts, all arguably satisfying the allegation, that it can convict a defendant of any one act so long as there is unanimity as to that one act. This means that multiple acts satisfying an allegation are charged acts, or else how could the jury convict based on any one act.
¶104The decision in People v. Tassell, supra,36 Cal.3d 77, was essentially a clarification of an earlier opinion, People v. Thompson (1980) 27 Cal.3d 303 [165 Cal.Rptr. 289, 611 P.2d 883], in which the Supreme Court articulated three factors for determining the admissibility of an uncharged offense. They were: “(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” (People v. Thompson, supra,27 Cal.3d at p. 315; original italics.) Thompson went on to define the first prong, materiality: “In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact in the proceeding or an intermediate fact ‘from which such ultimate fact[] may be presumed or inferred.’ Further, the ultimate fact to be proved must be ‘actually in dispute.’ If an accused has not ‘actually placed that [ultimate fact] in issue, ’ evidence of uncharged offenses may not be admitted to prove it. The fact that an accused has pleaded not guilty is not sufficient to place the elements of the crimes charged against him ‘in issue.’” (People v. Thompson, supra,27 Cal.3d at p. 315; citations and fits, omitted.)
¶105We also note that Tasselldisapproved the line of cases which established an exception based on corroboration of a victim’s testimony—where the other offense was testified to by one other than the victim of the charged crimes, the evidence was admissible; where that victim merely corroborated herself, it was excluded—because it conflicted with the Thompsonrule requiring that an issue other than credibility actually be in dispute. (Tassell, supra, 36 Cal.3d at p. 89, fn. 8.)
¶106In People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303], the Supreme Court held that defendant had a due process right, upon request, to instructions on a lesser related, but not included, offense when the lesser related offense is closely related to the charged crime, there is evidence of its commission and defendant’s theory of defense is consistent with such a finding. Geigerprovides no aid to defendant here, however, because defendant made no such request and because, in any event, it applies “only to cases in which a trial or retrial commenced after this decision becomes final.” (Id., at p. 532, fn. 13.) Geiger, filed on February 2, 1984, consequently became final on March 3, 1984. (Cal. Rules of Court, rule 24(a).) The trial in this case commenced nearly a year earlier on March 8, 1983.
¶107The Greer court explained: “Under section 288, the crime of rape, for example, has been expressly made punishable in different ways and by different provisions of the code. [1] Section 288 now specifically includes acts constituting other crimes and permits a greater penalty for those acts, if they are committed with the specified intent, upon a child under 14 years of age. . . . [T]he crime of statutory rape is included within section 288 by that section’s own terms . . . Now statutory rape committed upon the body of a child under 14 years of age can be punished as a lewd and lascivious act.” (People v. Greer (1947) 30 Cal.2d 589, 603 [184 P.2d 512].)
¶108As we have already noted in the margin, effective January 1, 1980, section 286, subdivision (b)(2) was amended to read: “Except as provided by Section 288, any person over the age of 21 years who participates in an act of sodomy with Another person who is under 16 years of age shall be guilty of a felony.” (Italics added.) Under this amendment, an act of sodomy on a child under 14 years of age which does not fall within section 286, subdivision (c) presumably is punishable only as lewd conduct under section 288. Thus sodomy of a child under 14 years would not constitute a violation of section 286, subdivision (b)(2) and no lesser included instruction for that crime of sodomy would be required.
¶109The standard instruction on lesser included offenses is found in CALJIC No. 17.10 (1984 Revision). That instruction reads: “If the jury is not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged and it unanimously so finds, it may convict him of any lesser offense if the jury is convinced beyond a reasonable doubt that he is guilty of such lesser offense. [fl [The offense of_is a lesser offense to the offense charged in Count__] . . . .”