Opinion
H042982
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. SHAWN PHILIP PAKES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1362887)
I. INTRODUCTION
Defendant Shawn Philip Pakes appeals after a jury convicted him of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)), four counts of lewd or lascivious acts on a child (§ 288, subd. (a)), one count of sexual intercourse with a child age 10 or younger (§ 288.7, subd. (a)), and one count of sodomy with a child age 10 or younger (ibid.). Defendant was sentenced to an indeterminate prison term of 50 years to life, consecutive to a 24-year determinate term.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) his trial counsel was ineffective for not seeking to exclude a pretext call and subsequent police interrogations as the product of improper police coercion; (2) the prosecutor committed misconduct by violating an in limine motion regarding the immigration status of defendant's wife; (3) cumulative prejudice resulted from the ineffective assistance of counsel and prosecutorial misconduct; (4) his convictions of sexual intercourse with a child and sodomy with a child violate the constitutional prohibition against ex post facto laws because the conduct may have predated the enactment of section 288.7; (5) his conviction of sexual intercourse with a child violates the due process clause because there was no substantial evidence the victim was under 11 years old; (6) his conviction of sodomy with a child violates the due process clause because there was no substantial evidence the offense occurred outside the time period covered by the continuous sexual abuse count; (7) the trial court erred by instructing the jury that the prosecution needed to prove that the crime occurred reasonably close to the date alleged; and (8) his trial counsel was ineffective for failing to object to the instruction on proof of the offense dates.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
A. Testimony of Natalie Doe
Natalie Doe was 17 years old and a junior in high school at the time of her trial testimony in May 2015. She was living in the state of Washington. From the time she was a baby until she finished eighth grade, Natalie had lived in a two-bedroom apartment in Santa Clara. Natalie would sleep in one bedroom with her mother on a queen-sized bed, and her two brothers would sleep in the other bedroom. She saw her biological father "sometimes on the weekends and sometimes during the week."
Defendant had been the boyfriend of Natalie's mother since Natalie was a baby. Defendant was "like a father figure" to Natalie. When defendant would spend the night at their apartment, he would sometimes sleep on the couch. Other times, he would sleep with Natalie and her mother.
One day when Natalie was about seven years old and in second grade, Natalie woke up to find defendant's hand on her stomach. Defendant, who was wearing only underwear, removed Natalie's clothes and put his hand on her vagina, then moved his hand up and down. Afterwards, defendant told Natalie, "You cannot tell anybody, especially not your mom." When Natalie first reported this incident, she did not describe defendant actually touching her vagina, because it was hard for her to talk about.
Natalie was born in March of 1998 and thus would have turned seven in March of 2005.
After the first incident, defendant continued to touch Natalie. At first, weeks would go by between touchings, but the touchings eventually were happening on a weekly basis. The touchings occurred from the time Natalie was in second grade until the summer between fifth and sixth grade, when defendant and Natalie's mother broke up.
Another incident occurred in the living room at Natalie's apartment. Her mother had gone to sleep, and defendant and Natalie were watching a movie on the television from the floor. At trial, Natalie remembered waking up and falling asleep; she did not recall previously saying that defendant had pulled down her pants and his pants.
An incident also occurred at defendant's house, which he shared with his father. Natalie was spending the night there following an argument with her mother. Natalie and defendant slept in the same bed, in defendant's room. The house had an attic, where defendant sometimes slept, and a basement, where defendant's father slept. Natalie remembered going to sleep and then waking up with her pajama pants and underwear down at her ankles. At trial, Natalie initially testified that defendant was in bed next to her when she woke up. However, after her recollection was refreshed, she remembered that defendant had been on top of her, with his penis inside her vagina. At trial, Natalie did not remember when this incident occurred, but she remembered being in elementary school, which went up to the fifth grade. However, she had previously reported that the incident had occurred when she was in sixth grade. Defendant had also put his penis into her vagina previous to that incident; the incident at his father's house was "more towards like the last [time]" he had done so.
On another occasion, defendant put his penis into Natalie's butt. Defendant and Natalie were in bed together, and Natalie felt defendant behind her. When she turned to look at defendant, he kissed her. Natalie then felt defendant's penis go into her butt. At trial, Natalie did not remember what grade she was in when this occurred, but she believed she was in elementary school. She had previously reported that this was the second time, that it had occurred when she was in "about second grade," and that the first time had been about two weeks earlier. At trial, Natalie confirmed that there was more than one incident involving sodomy.
Natalie testified that defendant put his penis into her vagina and/or butt "about every year" between second and sixth grade. Sometimes these acts would occur more than once a year.
When asked about the frequency of the sexual intercourse and sodomy, Natalie testified that "some kind of something happened about every year." Defendant argues that by "some kind of something," Natalie could have been referring to other acts, such as lewd touchings, and thus that Natalie's testimony did not establish that he committed sexual intercourse and/or sodomy at least once a year. The record does not support defendant's position. The context of the questioning clarifies that Natalie was referring to sexual intercourse and sodomy when she testified that "some kind of something happened about every year," and Natalie's earlier testimony established that the lewd touchings occurred more frequently—on a weekly basis.
Natalie had initially reported that there had been no oral sex, but at trial she testified that defendant had her put her mouth on his penis one time. The incident occurred at their apartment, in bed. Natalie did not recall many details of the incident at trial.
Natalie never told her family about what defendant did, because she felt embarrassed and scared. Defendant was paying their rent and many of their bills; Natalie's mother did not have a job. Natalie was concerned that the family would become homeless if she told on defendant.
Natalie finally disclosed the molestations in January 2013 after attending church, where there had been a discussion about sexual addictions. Natalie was afraid that if defendant had a daughter or stepdaughter, he would molest that girl. After Natalie made the disclosures, her mom was sad but then became angry that Natalie had not told her sooner. Natalie explained that she had a difficult time disclosing the details of the molestations. It was easier for her to remember and talk about it when there were not a lot of people around. At trial, it was difficult because there were a lot of people in the courtroom.
B. Testimony of C.C.
C.C., Natalie's mother, began dating defendant in the mid-1990's, when Natalie was an infant. C.C. confirmed that when defendant slept over, he often slept in a bed with her and Natalie, specifically during the time period when Natalie was about seven or eight years old until she was around nine or 10 years old. Even after defendant moved out, he would sometimes sleep over, although he would sleep on the floor. C.C. also confirmed that defendant frequently helped pay the rent.
C.C. confirmed that Natalie spent the night at defendant's home on one occasion. C.C., Natalie, and defendant had been reorganizing a closet, which led to a fight and Natalie going to defendant's house for the night
To C.C., it appeared that defendant had a loving relationship with her children. However, after she broke up with defendant, she found his behavior towards Natalie to be "really odd." In particular, defendant continued to buy lots of things for Natalie.
C.C. also confirmed that Natalie first disclosed the molestations one day after they had attended church, where there had been a lesson on honesty and secrets. Natalie initially told her that defendant had done "bad things" to her. When C.C. asked, "[W]hat kinds of things," Natalie replied, "Like sex things." Following the disclosure, C.C. called the police.
C. Investigation
Santa Clara Police Detective Alex Torke reviewed the report made by C.C. in January 2013. Because Natalie and C.C. were living in Washington state at the time, he contacted the Vancouver Police Department and asked that someone in the department interview Natalie. Natalie was subsequently interviewed by a trained forensic interviewer; the interview was videotaped and forwarded to Detective Torke.
1. Pretext Call
Detective Torke next arranged to have Natalie make a pretext call to defendant. During the conversation, Detective Torke "periodically wrote questions" for Natalie to ask defendant, to "help her stay on track."
When defendant answered the phone, Natalie broke down crying. Natalie proceeded to discuss the sexual abuse with defendant, who never specifically denied the conduct she described. At the beginning of the conversation, Natalie told defendant she was having "trouble" with "[t]he stuff you did to me." Defendant responded, "Well . . . I can't believe it's, I, I, I can't believe it's really you callin' . . . ." Natalie told defendant, "I'm just wondering why you did it." Defendant responded, "Well, I, I, I, I could not work out anything with your mother, of course, um, that you wouldn't understand, really, but it was um, a situation that I can't just explain over the phone, really." Defendant said he was "in a situation here, I'm working with someone right now." He offered to talk to Natalie later, saying he had "a lot to say." He suggested that until then, Natalie "pray about it."
Defendant asked about Natalie's dad and asked if they could talk later. Natalie replied, "I need to know why you touched me." Defendant responded, "Oh, well, basically, you know what, um, uh-ho, wow, I, I, I don't know what, what to say about somethin' like that right now." He again offered to talk to her later. He added, "Um, but like I said, um, uh, what I was going through, um, basically it was, you know, with Mom and everything, it was just really, a situation that was really out of control." Defendant acknowledged, "I owe you an explanation," and he asked for her to have "some understanding." He reiterated that it had been a difficult time for him, and he again asked if they could speak later because he was "dealin' with, with a client right now."
Natalie said she did not think she could talk later. Defendant told her he was not going to talk unless she was alone, but he also told her, "[B]asically I had to find a spot for a comfort zone, and um, . . . we all [make] mistakes, I do too, I did too, we all did." Natalie reiterated that she just wanted to know why. Defendant reiterated that he could not "explain that right now" and asked why she had not called him earlier. Natalie told him, "It's bothering me now." Defendant said he did not know "where to begin" and that there had been "a lot goin' on" at the time. He reiterated that prayer is important and said he had been praying for Natalie.
Natalie told defendant she just wanted to know why defendant had touched her. Defendant told her that "there was drinking and there was other things goin' on" and that he had not been in his "right mind." Defendant said he had been "dealing with a lotta issues" and asked for forgiveness and understanding.
Natalie asked defendant to say he was sorry. Defendant responded, "I'm sor-, you know what, I, I am so sorry for anything that I've done . . . ." Natalie interrupted, "For touching me though." Defendant replied, "Oh, no, I, I, you, you guys, you guys are the best, you guys were the great, greatest family . . . and I'm sorry for anything that I could've done . . . ." Defendant continued to talk about praying and said he was "really glad" that Natalie had called. He invited her to call to talk again, saying, "that would be really awesome."
Natalie told defendant, "I remember us in your bed." Defendant asked Natalie what she was doing that day and whether she was staying with her mother or her father. Natalie asked, "Did you use a condom, do I need to get checked?" Defendant replied, "Ahh, I don't know what you're talkin' about on that part . . . ." Natalie said, "[Y]ou know what I'm talking about." Defendant started to respond, and Natalie asked, "Remember?" Defendant replied, "I would rather talk to you . . . a little bit later right now," again referencing his client. Natalie said they could talk later that afternoon. Defendant asked further questions about Natalie's mother, her cats, and where she was living.
Natalie told defendant, "I just need to know why." Defendant described how he had been drinking, doing drugs, and fighting with Natalie's mother, and how he had not been in "the best frame of mind." Natalie asked, "Why did you touch me[?]" Defendant again explained how he had been drinking and "not doing the right things." He apologized "if I made you sad" and asked Natalie to forgive him. Defendant said, "[T]he only thing we can do is, is talk it out, and, and, and pray about it . . . ." He again offered to talk to Natalie again later. Natalie tried to continue the conversation by asking defendant to say what he did to her and by saying, "You touched me," but defendant said he had to go and that he would talk to her later "about stuff." The conversation ended.
2. Interviews of Defendant
Detective Torke subsequently contacted defendant at his apartment and asked to speak with him. Defendant agreed, and no Miranda advisements were given. He denied having touched Natalie inappropriately. Defendant initially denied that Natalie had called him recently. He then said he had tried calling her to find out "how she was doing, what's going on." He then acknowledged that Natalie had called him and confronted him about having touched her. Defendant also acknowledged that he used to have sex with C.C. while Natalie was in bed with them, that Natalie would have seen him naked, and that he could have touched her when they were sleeping. He admitted his penis might have touched Natalie. However, he denied having sex with Natalie or doing "anything that would be considered really, really, really, really, really bad."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Detective Torke arrested defendant and interviewed him again at the police station after providing the Miranda advisements. Defendant again acknowledged that he used to sleep naked with Natalie and C.C. He described how he had an affectionate relationship with Natalie and how he would sometimes wake up holding Natalie, which could have resulted in his "crotch" being "up against hers." It was also possible that about once a week, Natalie would have woken up with defendant's penis in her butt. Defendant was now aware that he should not have had Natalie in bed with him and C.C., but at the time, he was drinking alcohol and doing drugs.
Defendant acknowledged that he would get aroused when he was next to Natalie. He acknowledged that Natalie had touched his penis once. He acknowledged that Natalie had spent a night together at his father's house, that he had been "rubbing up close to her," and that he had "probably got aroused with her." Defendant also admitted that he had once masturbated next to Natalie.
At the end of the interview, defendant wrote an apology letter to Natalie. In the letter, defendant wrote: "I just want to let you know - that I did try to be a decent father figure to you, care for . . . you . . . , and I want you to know that it is not your fault. I realize I made bad choices, and I want you to know - that I am sorry."
D. Expert Witness
Licensed psychologist Anthony Urquiza testified as a mental health expert in the area of child sexual assault. Urquiza described Child Sexual Abuse Accommodation Syndrome (CSAAS) as "an educational tool" for treating child victims of sexual abuse. CSAAS describes the common characteristics of a child who has been sexual abused, not all of which necessarily occur in every case.
The first common characteristic, secrecy, relates to the fact that most sexual abuse is perpetrated by someone with whom the child has an ongoing relationship. The abuser is also typically in a position of authority or control. Sometimes, the abuser will explicitly tell the child that "something bad will happen" if the child discloses the abuse, but sometimes an abuser will keep a child quiet through intimidation. In other cases, the abuser will provide the victim with special attention and gifts, creating a situation in which the victim does not want something bad to happen to the abuser.
The next common characteristic, helplessness, explains why it is difficult for a child victim to protect himself or herself from sexual abuse. Child victims, who are usually vulnerable and submissive due to the abuser's position of power, typically do not fight off their abuser, nor do they yell.
The third common characteristic, entrapment and accommodation, refers to coping mechanisms used by child victims of sexual abuse. Children will pretend to be asleep during the abuse, or they will disassociate. Child victims sometimes present with a flat affect rather than an emotional response when disclosing the abuse.
The fourth common characteristic, delayed and unconvincing disclosure, refers to the fact that most children do not immediately disclose sexual abuse. Disclosure can be delayed for several years. Often, the disclosure is "a process." The initial disclosure may be vague. If the child receives support from the initial disclosure, he or she may be able to give more information in subsequent versions.
Urquiza testified that there is a fifth common characteristic of CSAAS: retraction and recantation. However, Urquiza did not further describe this characteristic during his trial testimony.
Urquiza explained that if a child has been sexually abused "a bunch of times," it can be difficult for the child to separate the various incidents. While they can describe certain behaviors, they often struggle with concepts of time and how often something happened.
E. Defense Case
Natalie's biological father had observed defendant and Natalie together over the years. He believed defendant was a good parental figure to Natalie and had no concerns that defendant was acting inappropriately with her. He had been assured by C.C. that defendant was not sharing a bed with Natalie.
One of Natalie's older brothers considered defendant to be a "father-like figure" for the family and a good parental figure for Natalie.
K.P., age 14 at trial, was defendant's stepdaughter. Her mother had married defendant in 2011. Defendant had never done any "bad touching" to her, and she had always felt comfortable around him.
D.P., defendant's wife, had never seen defendant touching K.P. inappropriately. However, she acknowledged that she did not allow defendant to touch K.P. and that K.P. had her own bedroom.
Defendant's father recalled that Natalie had once spent the night with defendant at his house. Defendant slept in his attic bedroom, and Natalie slept in the office. Defendant's father went upstairs numerous times to use the bathroom, and he checked on defendant. He never saw defendant in bed with Natalie. He would have heard unusual noises from the office, which was right above his bed. He also would have heard defendant coming down the ladder from the attic. Defendant's father admitted previously telling an investigator that he had heard Natalie saying, "[N]o," that night, but at trial he testified that Natalie had been talking to the dog, saying, "No, Otis."
Defendant did not testify. His trial counsel argued that Natalie was not credible and that any touching that occurred was not done for sexual arousal.
F. Charges , Verdicts , and Sentence
Defendant was charged as follows. In count 1, he was charged with continuous sexual abuse of a child (§ 288.5, subd. (a)) during the period of March 23, 2005 to March 22, 2006, when Natalie was seven years old. In count 2, he was charged with lewd or lascivious acts on a child (§ 288, subd. (a)) during the period of March 23, 2006 to March 22, 2007, when Natalie was eight years old. In count 3, he was charged with sexual intercourse with a child age 10 or younger (§ 288.7, subd. (a)) during the period of March 23, 2006 to March 22, 2009, when Natalie was eight to 10 years old. In count 4, he was charged with sodomy with a child age 10 or younger (§ 288.7, subd. (a)) during the period of March 23, 2006 to March 22, 2009, when Natalie was eight to 10 years old. In count 5, he was charged with lewd or lascivious acts on a child (§ 288, subd. (a)) during the period of March 23, 2007 to March 22, 2008, when Natalie was nine years old. In count 6, he was charged with lewd or lascivious acts on a child (§ 288, subd. (a)) during the period of March 23, 2008 to March 22, 2009, when Natalie was 10 years old. In count 7, he was charged with lewd or lascivious acts on a child (§ 288, subd. (a)) during the period of March 23, 2009 to March 22, 2011, when Natalie was 11 to 12 years old.
The jury convicted defendant of all charges. The trial court sentenced defendant to an indeterminate prison term of 50 years to life, consecutive to a 24-year determinate term. The indeterminate term was comprised of consecutive sentences of 25 years to life for the two counts of sexual intercourse or sodomy with a child (§ 288.7, subd. (a); counts 3 & 4). The determinate term was comprised of the 16-year upper term for continuous sexual abuse of a child (§ 288.5, subd. (a); count 1), a consecutive eight-year term for the lewd or lascivious acts on a child charged in count 2 (§ 288, subd. (a)), and concurrent eight-year terms for the other three counts of lewd or lascivious acts on a child (id.; counts 5-7).
III. DISCUSSION
A. Pretext Call/Interrogations
Defendant contends his trial counsel was ineffective for not seeking to exclude the pretext call and subsequent police interviews as the product of improper police coercion. Defendant claims that Natalie was acting as an agent of the police during the call because Detective Torke was present and giving Natalie suggestions about what to say. Defendant contends that the statements he made during the pretext call were involuntary because Natalie played on his sympathies and made implied promises of leniency, and that the statements he made during the subsequent interviews were "a direct fruit" of the coercion during the pretext call.
1. Legal Principles
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability] that, ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson); see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland).)
"It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 79.) " 'A statement is involuntary if it is not the product of " 'a rational intellect and free will.' " [Citation.] The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he [or she] confessed." [Citation.] " 'The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." [Citation.]' [Citation.] In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." [Citation.]' [Citation.]" [Citation.]' [Citation.]" (People v. McWhorter (2009) 47 Cal.4th 318, 346-347 (McWhorter).)
" 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked. [Citation.]' [Citation.]" (McWhorter, supra, 47 Cal.4th at p. 347.)
2. Analysis
Defendant contends his inculpatory statements during the pretext call were involuntary because Natalie played on his sense of sympathy for her by crying and expressing her distress. He contends the setting was coercive because he was with a client or at a job site, and thus in a situation where he could not discuss or deny the allegations. Additionally, defendant claims Natalie impliedly promised him leniency by indicating that if he apologized or admitted his conduct, she would not go to the police.
Having carefully reviewed the transcript of the pretext call between defendant and Natalie, we need not determine whether Natalie was acting as an agent of the police, because even assuming that she was, defendant's admissions during the call were voluntary.
First, no improper psychological coercion resulted from the fact that Natalie was upset and a sympathetic victim. " ' "The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." ' [Citation.]" (People v. Williams (2010) 49 Cal.4th 405, 443 (Williams).) Nothing in the record indicates that Natalie's expression of distress about having been inappropriately touched by defendant was a ploy rather than genuine. Moreover, Natalie's emotional state was not the type of circumstance that would tend to overbear defendant's will and produce an involuntary statement. (See McWhorter, supra, 47 Cal.4th at p. 347.) Under the circumstances, defendant could have comforted Natalie while also denying her accusations.
Second, the setting of the pretext call was not coercive simply because defendant was "with a client, or at a job site, at the time of the call." Defendant was not in custody; he could have hung up the phone and ended the call at any time. Instead, even after suggesting that he and Natalie talk later, defendant continued to talk and at times redirected the topics of conversation, indicating he wanted to continue to talk.
Third, the record does not support defendant's claim that Natalie impliedly promised him leniency by indicating that an apology would end the matter. No reasonable person would believe that Natalie was promising not to go to the police or that she had any authority to ensure that no prosecution would occur if defendant admitted that he had touched her inappropriately. It was not coercive to offer defendant an "opportunity to provide the details of the crime." (Williams, supra, 49 Cal.4th at p. 444.)
Contrary to defendant's claim, this case is not like Williams v. Brewer (S.D. Iowa 1974) 375 F.Supp. 170. In that case, the defendant was interviewed while in police custody and after the police ignored his request for an attorney. The police, who were aware of the defendant's "religious nature and history of mental illness, used a psychological approach which purposefully played on religion and on [the defendant's] sympathies." (Id. at p. 184.) Here, defendant was not in police custody, he had not asked for an attorney, and the pretext call did not play on religion.
In this case, we find that the record shows that defendant's " 'resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.' " (Williams, supra, 49 Cal.4th at p. 444.) We therefore determine that defendant's statements during the pretext telephone call were voluntary and that a motion to suppress the statements he made during the call and the subsequent police interviews would have been futile. Accordingly, we find no merit in defendant's claim of ineffective assistance of counsel based upon his trial counsel's failure to bring a motion to suppress the pretext telephone call and the subsequent police interviews.
B. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by violating an in limine motion regarding the immigration status of defendant's wife, D.P. Defendant contends that the prosecutor improperly asked a question that suggested D.P. had married defendant for immigration purposes, and he claims that suggestion undercut his defense.
1. Proceedings Below
During motions in limine, defendant's trial counsel noted that D.P. was not a naturalized citizen but had a green card, and that the prosecutor had suggested this fact might be relevant to the case. The prosecutor confirmed that she might ask about D.P.'s citizenship to explore why D.P. might have married defendant.
The trial court indicated that it was not prepared to rule on the issue yet and asked that the prosecutor "not raise this issue without prior Court approval." The parties both agreed that it was acceptable for the trial court to defer its ruling.
On direct examination, D.P. referenced the fact that defendant was the first boyfriend she had after coming to the United States. On cross-examination, the prosecutor asked, "[Y]ou mentioned in your interview with [the] police that by marrying the defendant it, quote, fixed your situation with immigration. Is that correct?"
Defendant's trial counsel objected, asserting that the question violated the trial court's prior order. He asked the trial court to "exclude any of that evidence" and prohibit the prosecutor from asking further questions about "that issue."
The prosecutor asserted that at the time she asked the question, she had not recalled the trial court's decision to defer ruling on the matter. However, she had subsequently looked at her notes, which read, "wife immigration status, get prior Court approval." She apologized but argued that that precluding her from asking further questions about D.P.'s immigration status was not the "right approach," because her immigration status was relevant.
The discussion continued the following day, with an attorney representing D.P. present. D.P.'s attorney argued that the prosecutor should be precluded from further questioning D.P. about the intent behind her marriage to defendant. The trial court ruled that such questioning would be "of marginal probative value" and thus that the questioning would be precluded under Evidence Code section 352.
Defendant's trial counsel then moved for a mistrial. Defendant's trial counsel argued that even with an instruction to disregard the immigration question, the "bell" could not be "un-rung."
The trial court found that the prosecutor had made "a mistake" by asking the immigration question and indicated it would admonish the jury not to consider the question and not to consider D.P.'s immigration status. The trial court denied the motion for a mistrial.
Before D.P. resumed her cross-examination, the trial court instructed the jury: "You are to disregard any question or questions yesterday regarding immigration status. You are not to consider that for any purpose." At the end of trial, the trial court instructed the jury, "Nothing that the attorneys say is evidence. . . . Their questions are not evidence."
2. Analysis
"Under the federal Constitution, to be reversible, a prosecutor's improper comments must ' "so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.] ' "But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citations.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.)
"In a close case, a prosecutor's violation of the trial court's orders in limine could have a prejudicial effect on the jury and thus could rise to the level of prejudicial misconduct." (People v. Peoples (2016) 62 Cal.4th 718, 795 (Peoples).) In Peoples, the prosecutor "flouted" four of the trial court's orders in limine. (Ibid.) However, on nearly every occasion, the trial court sustained a defense objection to the prosecutor's question and instructed the jury to disregard it, which was "sufficient to forestall any improper inferences on the part of the jury" and resulted in no prejudice. (Ibid.)
The Attorney General concedes that the prosecutor's question was improper but asserts that the question did not constitute prejudicial misconduct under the above standard. We agree. As in Peoples, the the trial court sustained a defense objection to the prosecutor's improper question and ordered the jury to disregard it. This was "sufficient to forestall any improper inferences on the part of the jury" and resulted in no prejudice. (See Peoples, supra, 62 Cal.4th at p. 795.)
We disagree with defendant's claim that in this case, the trial court's admonitions could not have been effective. The prosecutor's improper question was an isolated incident, and the question involved a matter not directly related to defendant's guilt. (Cf. People v. Wagner (1975) 13 Cal.3d 612, 620 [in prosecution for drug offense, prosecutor repeatedly insinuated that the defendant "had engaged in extensive prior drug transactions"]; People v. Evans (1952) 39 Cal.2d 242, 247-248 [prosecutor asked improper leading questions to several witnesses].) Under the circumstances here, we follow the general presumption that jurors are able to follow the trial court's admonitions. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 172; see also People v. Boyette (2002) 29 Cal.4th 381, 453 [admonitions that attorneys' statements are not evidence, and that evidence consists of testimony of witnesses, reduced the chance the jury relied on prosecutor's improper questions].)
C. Cumulative Prejudice
Defendant contends cumulative prejudice resulted from the ineffective assistance of counsel and prosecutorial misconduct. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) However, we have found neither ineffective assistance of counsel nor prejudicial prosecutorial misconduct. Therefore, there can be no cumulative prejudice.
D. Ex Post Facto Challenge
Defendant contends his convictions of sexual intercourse with a child and sodomy with a child (counts 3 and 4) violate the constitutional prohibition against ex post facto laws because the conduct may have predated the September 20, 2006 effective date of section 288.7.
Although defendant did not make an ex post facto challenge below, the Attorney General concedes that the claim may be raised for the first time on appeal.
1. Proceedings Below
The first amended information alleged that counts 3 and 4 both occurred "[o]n or about and between March 23, 2006 and March 22, 2009," when Natalie was eight to 10 years old.
As noted above, at trial, Natalie described one specific incident of sexual intercourse and one specific incident of sodomy. She did not remember what grade she was in when either incident occurred, but she believed she was in elementary school. However, she testified that defendant had engaged in sexual intercourse and sodomy on other occasions as well: "about every year" between second and sixth grade, and sometimes more than once a year.
Since Natalie was a junior in high school at the time of her trial testimony in May 2015, she would have been in second grade from late August 2005 to mid-June 2006, in third grade from late August 2006 to mid-June 2007, in fourth grade from late August 2007 to mid-June 2008, and in fifth grade from late August 2008 to mid-June 2009.
Pursuant to defendant's request, we take judicial notice of the fact that Natalie's elementary school was within the Santa Clara Unified School District, and of the fact that the district's school calendars for the years 2005-2006 and 2008-2009 show that those school terms began in late August and ended in mid-June. (See Evid. Code, § 452, subd. (h).)
2. Applicable Law
Section 288.7 "created a new offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, oral copulation, or sexual penetration of a child who is 10 years of age or younger. [Citations.]" (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas).) The statute was enacted in 2006 and became effective on September 20, 2006. (Stats. 2006, ch. 337, § 9.)
"Our state and federal Constitutions prohibit ex post facto laws. [Citations.] Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto. [Citation.]" (Rojas, supra, 237 Cal.App.4th at p. 1306.) "Therefore, any application of section 288.7 to conduct that occurred prior to September 20, 2006, is a violation of the state and federal ex post facto clauses." (Ibid.)
In Rojas, the defendant was charged with violating section 288.7 after the statute's effective date: " '[o]n or about December 1, 2006 through August 5, 2011.' " (Rojas, supra, 237 Cal.App.4th at p. 1302.) However, the jury was also instructed that it had to find the defendant committed the offense " 'on a date or dates after August 12, 2005' " (id. at p. 1303), which permitted the jury to base a conviction on an incident prior to the effective date of section 288.7. In that case, the victim had testified that the abuse began when she was three or four years old and that the defendant had molested her about 10 times. (Rojas, supra, at p. 1302.) However, she did not testify about the frequency of the molestations, and there was no other evidence to show when the section 288.7 crime had occurred. The Rojas court reversed the defendant's conviction, finding that the record allowed for reasonable doubt over whether the section 288.7 conviction was based on an act that occurred on or after September 20, 2006. (Rojas, supra, at p. 1307.)
An analogous ex post facto claim was considered in People v. Hiscox (2006) 136 Cal.App.4th 253 (Hiscox). The Hiscox defendant was convicted of 11 counts of violating section 288 on multiple victims, based on offenses alleged to have been committed between 1992 and 1996. (Hiscox, supra, at p. 257.) The defendant was sentenced pursuant to section 667.61, which had become effective on November 30, 1994. (Hiscox, supra, at p. 257.) On appeal, the court agreed with the defendant that sentencing him pursuant to section 667.61 violated ex post facto principles. The court explained that it could not uphold the convictions unless the evidence left "no reasonable doubt" that the charges were based on events occurring on or after the effective date of section 667.61. (Hiscox, supra, at p. 261.) The court concluded that it could not make such a determination on the trial record, because none of the testimony showed whether the offenses happened before or after section 667.61 took effect. (Hiscox, supra, at p. 261.)
The defendant in People v. Riskin (2006) 143 Cal.App.4th 234 (Riskin) also challenged his sentencing pursuant to section 667.61 as violating ex post facto principles. The challenged conviction was for committing a forcible lewd act during a time period that began before the November 30, 1994 effective date of section 667.61: between June 15, 1994 and June 14, 1998. (Riskin, supra, at p. 244.) Based on the victim's testimony, it was plausible that the acts had all occurred before the statute's effective date. (Id. at p. 245.) Thus, sentencing under section 667.61 violated ex post facto principles. (Riskin, supra, at p. 245.)
3. Analysis
In this case, it would violate ex post facto principles if defendant's convictions of counts 3 and 4 were based on conduct that occurred before September 20, 2006—i.e., when Natalie was in second grade or at the very beginning of her third grade year. However, we may uphold defendant's convictions if the "evidence leaves no reasonable doubt" that at least one incident of sexual intercourse and at least one incident of sodomy occurred after September 20, 2006. (See Hiscox, supra, 136 Cal.App.4th at p. 261.)
Defendant's argument is based on his claim that Natalie's testimony only established one act of sodomy and one act of sexual intercourse. He contends that the jury could have found that the one act of sodomy occurred when Natalie was in second grade, which was from the fall of 2005 to the summer of 2006 and thus prior to the September 20, 2006 effective date of section 288.7. He also contends that the one act of sexual intercourse occurred when Natalie was 11 years old, and thus at a time when defendant could not have violated section 288.7, which requires the victim be 10 years old or younger.
We disagree with defendant's reading of the record and find that the evidence establishes beyond a reasonable doubt that the jury's guilty verdicts as to counts 3 and 4 pertained to events after September 20, 2006. Natalie testified that defendant had engaged in sexual intercourse and sodomy "about every year" between second and sixth grade, and sometimes more than once a year. Natalie's testimony thus established that an act of sexual intercourse, sodomy, or both occurred at least once a year from the time she was in second grade to before she entered sixth grade: that is, from the fall of 2005 to the summer of 2009, which included the time period of September 20, 2006 to March 22, 2009. This evidence leaves no reasonable doubt that defendant engaged in sexual intercourse and sodomy with Natalie during that time period.
Natalie's testimony establishing that an act of sexual intercourse, sodomy, or both occurred at least once a year between September 20, 2006 and March 22, 2009 distinguishes the instant case from Rojas, Hiscox, and Riskin, in which the victims' testimony was not specific enough to ensure that the charged conduct had occurred after section 288.7's effective date. On this record, the prosecutor "succeeded in establishing" that defendant committed counts 3 and 4 when section 288.7 was in effect. (See Hiscox, supra, 136 Cal.App.4th at p. 262.) Thus, defendant's convictions of counts 3 and 4 did not violate the ex post facto clauses of the state or federal Constitutions.
E. Sufficiency of the Evidence - Count 3
Defendant contends there is insufficient evidence to support his conviction of sexual intercourse with a child aged 10 or younger (§ 288.7, subd. (a); count 3), rendering the conviction a violation of the Fourteenth Amendment's due process clause. Specifically, he claims there was no substantial evidence Natalie was 10 years old or younger at the time of the sexual intercourse.
1. Legal Principles
Under the federal Constitution's due process clause, there is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In addressing a claim of insufficient evidence, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In People v. Jones (1990) 51 Cal.3d 294, 308 (Jones), the California Supreme Court held that the particular details of a charge of child molestation are not elements of the offense and are not necessary to sustain a conviction. Rather, "[t]he victim . . . must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Id. at p. 316.)
2. Analysis
Defendant contends the evidence showed that Natalie was likely 11 years old at the time of the sexual intercourse incident she described as having occurred at the home of defendant's father. Natalie testified she was in elementary school when that incident occurred, and, as defendant points out, she would have turned 11 when she was still in fifth grade. She had previously reported that the incident had occurred when she was in sixth grade.
Although Natalie's testimony and prior statement did suggest that one incident of sexual intercourse may have occurred when she was over 10 years old, she testified that defendant had engaged in sexual intercourse with her before that, and that the specific incident she had described was "more towards like the last [time]." Natalie also testified that defendant had engaged in sexual intercourse or sodomy with her at least once a year. Contrary to defendant's claim, when Natalie testified that "some kind of something happened about every year," the record makes it clear that she was referring to acts of sexual intercourse and sodomy. As explained above (see footnote 3, ante, p. 4) the context of the questioning clarifies that Natalie was referring to sexual intercourse and sodomy only. Additionally, Natalie's other testimony established that defendant touched her on a weekly basis, not a yearly basis.
Natalie's testimony described "the kind of act or acts committed with sufficient specificity" to assure that sexual intercourse occurred. (Jones, supra, 51 Cal.3d at p. 316, italics omitted.) She described the frequency of those acts "with sufficient certainty" to support a finding that defendant committed at least one act of sexual intercourse with her prior to the incident that may have occurred after she had turned 11 years old. (Ibid.) And, Natalie described "the general time period in which these acts occurred" to assure the acts of sexual intercourse were committed within the charged time period. (Ibid., italics omitted.) Thus, substantial evidence supports defendant's conviction of count 3.
F. Due Process Challenge to Count 4
Defendant contends his conviction of sodomy with a child (count 4) violates the due process clause because there was no substantial evidence the offense occurred outside the time period covered by count 1, continuous sexual abuse (§ 288.5, subd. (a))—that is, after March 22, 2006.
1. Applicable Law
Section 288.5, subdivision (c) precludes a prosecutor from obtaining convictions of continuous sexual abuse and specific sexual offenses "pertaining to the same victim over the same period of time." (People v. Johnson (2002) 28 Cal.4th 240, 248.)
The statute provides: "No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses . . . involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative." (§ 288.5, subd. (c).)
Section 1203.066, subdivision (b) provides: " 'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender."
The statute previously precluded any "other felony sex offense involving the same victim" from being charged in the same proceeding as a charge of continuous sexual abuse "unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative." (Former § 288.5, subd. (c); see Stats. 1989, ch. 1402, § 4; Stats. 2006, ch. 337, § 8, eff. Sept. 20, 2006.) --------
2. Analysis
Defendant contends there is no substantial evidence showing that he committed sodomy after March 22, 2006 (the last day of the time period covered by count 1) and before Natalie turned 11 years old. He points to Natalie's prior statement that the specific incident of sodomy occurred when she was in "about second grade" and notes that Natalie would have been in second grade both before and after March 23, 2006.
Although Natalie's testimony and prior statement did suggest that one or two incidents of sodomy may have occurred during the same time period as the continuous sexual abuse count, her testimony also supports a finding that defendant committed sodomy at least once after that time period. Natalie testified that defendant committed sodomy, sexual intercourse, or both at least once a year until the time she was in sixth grade. As noted above, when Natalie testified that "some kind of something happened about every year," she was referring to acts of sexual intercourse and sodomy. Thus, Natalie's testimony described "the kind of act or acts committed with sufficient specificity" to assure that sodomy occurred. (Jones, supra, 51 Cal.3d at p. 316, italics omitted.) She described the frequency of those acts "with sufficient certainty" to support a finding that defendant committed at least one act of sodomy with her on or after March 23, 2006 and before she turned 11 years old. (Ibid.) And, Natalie described "the general time period in which these acts occurred" with enough specificity to assure that at least one act of sodomy was committed within that time period. (Ibid., italics omitted.) Thus, substantial evidence supports defendant's conviction of count 4.
G. Instruction on Offense Dates (CALCRIM No. 207)
Defendant contends the trial court erred by instructing the jury, pursuant to CALCRIM No. 207, that the prosecution needed to prove that the crime occurred reasonably close to the date alleged. Defendant asserts that in this particular case, CALCRIM No. 207 was inappropriate because the prosecution had to prove that counts 2 through 7 occurred after a specific date—March 22, 2006, which was the last day of the one-year time period covered by count 1, the continuous sexual abuse charge. Defendant contends the instruction violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process.
1. Proceedings Below
Pursuant to CALCRIM No. 207, the trial court instructed the jury, as to each count: "It is alleged . . . that the crime occurred on or about and between [certain dates]. The People are not required to prove that the crime took place exactly on that day, but only that it happened reasonably close to that day."
Pursuant to CALCRIM No. 3501, the trial court instructed the jury on unanimity as follows: "The defendant is charged with continuous sexual abuse of a child under 14 in Count 1 sometime during the period of March 23, 2005 to March 22, 2006. [¶] The defendant is charged with lewd and lascivious act on a child under 14 in Count 2 sometime during the period of March 23, 2006 to March 22, 2007. [¶] The defendant is charged with sexual intercourse or sodomy on a child ten years or younger in Count 3 and 4 sometime during the period of March 23, 2006 to March 22, 2009. [¶] The defendant is charged with lewd and lascivious act on a child under 14 in Count 5 sometime during the period of March 23, 2007 to March 22, 2008. [¶] The defendant is charged with lewd and lascivious act on a child under 14 in Count 6 sometime during the period of March 23, 2008 to March 22, 2009. [¶] The defendant is charged with lewd and lascivious act on a child under 14 in Count 7 sometime during the period of March 23, 2009 to March 22, 2011. [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] One, you all agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed for each offense; [¶] Or two, you all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period. And if proved, that the defendant committed at least the number of offenses charged."
During argument to the jury, the prosecutor reminded the jury that count 1 "requires three or more acts," and that in order to convict defendant of all the charges, the jury needed to "believe ten separate acts" occurred. The prosecutor also reminded the jury that it could not "double up" and count any one act as part of the continuous sexual abuse and also as a lewd act.
2. Forfeiture
Defendant did not object to the instruction at trial, and the Attorney General contends that defendant thereby forfeited this claim. Defendant contends the forfeiture rule does not apply because he is not arguing that CALCRIM No. 207 was "incomplete or overly general," but rather that CALCRIM No. 207 constituted a misinstruction on an element of the offense.
" 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (Rojas, supra, 237 Cal.App.4th at p. 1304.) If a defendant could have asked for modification or clarification of the instruction he or she challenges on appeal, the forfeiture rule is "triggered" and the appellate court "review[s] the alleged instructional error only to determine if [the defendant's] substantial rights were affected (§ 1259), i.e., whether the giving of [the instruction] resulted in a miscarriage of justice. [Citation.]" (Ibid.)
We agree with the Attorney General that defendant was required to object to CALCRIM No. 207, because the instruction could have been modified to alleviate the concerns he now expresses. As we shall explain, however, there was no reasonable likelihood the jury interpreted CALCRIM No. 207 to permit the jury to convict defendant of counts 2 through 7 based on acts he committed before March 22, 2006, the last day of the one-year period covered by the continuous sexual abuse count. In addition, on this record, it is not reasonably probable that the jury would have reached a different result had CALCRIM No. 207 not been given.
3. Analysis
In asserting that the actual date of each offense was a "material element" of each offense and that CALCRIM No. 207 was therefore inappropriate, defendant discusses People v. Valenti (2016) 243 Cal.App.4th 1140 (Valenti) and Rojas, supra, 237 Cal.App.4th 1298. However, both cases are inapposite.
In Rojas, the court noted that "CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date. [Citations.]" (Rojas, supra, 237 Cal.App.4th at p. 1304.) In Rojas, the defendant challenged CALCRIM No. 207, as given, in two respects. First, as discussed above, Rojas found an ex post facto violation because a modified version of CALCRIM No. 207 told the jury that it could convict the defendant of violating section 288.7 if it found he committed the offense " 'on a date or dates after August 12, 2005,' " which was prior to the statute's effective date and outside the time period in the charging document. (Rojas, supra, at p. 1303.) In this case, CALCRIM No. 207 was not modified to include a date outside the time period in the charging document.
The Rojas defendant's second claim was "that CALCRIM No. 207 should not be used 'when two similar offenses are charged in separate counts.' " (Rojas, supra, 237 Cal.App.4th at p. 1304.) In that case, count 1 was alleged to have occurred on or about August 6, 2011, and count 2 was alleged to have occurred " 'on or about December 1, 2006, through August 5, 2011.' " (Id. at p. 1303.) The defendant argued that giving CALCRIM No. 207 was error because it permitted the jury to base counts 1 and 2 on the same act. The court found that the defendant had forfeited his claim by failing to object to the instruction, and further, that it was not reasonably likely the verdict would have been different if CALCRIM No. 207 had not been given. The court found that nothing in the record suggested the jury did not fully understand count 1 applied to a specific incident that had occurred late on the night of August 5, 2011 or early in the morning of August 6, 2011, and the court noted that the jury had been instructed that each of the counts charged was a separate crime. (Rojas, supra, at p. 1305.) Unlike in Rojas, here none of the charges included a count that was alleged to have been committed on a specific date.
Valenti did not consider the propriety of giving CALCRIM No. 207. In that case, the defendant had been charged with two counts of continuous sexual abuse of a minor during time periods that spanned the 2006 amendment making that offense subject to punishment under section 667.61. (Valenti, supra, 243 Cal.App.4th at pp. 1174-1175.) The court held that the defendant could not be sentenced under section 667.61 because the jury had not been instructed that at least one act of abuse must have occurred after the 2006 amendment. (Valenti, supra, at p. 1176.) Since Valenti did not consider whether an instruction like CALCRIM No. 207 was properly given, it is not helpful to defendant's claim.
" ' " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " ' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) " ' "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" [Citation.]' " (Ibid.)
Here, there was no reasonable likelihood the jury understood CALCRIM No. 207 to permit conviction of counts 2 through 7 based on acts that occurred during the time period associated with count 1, the continuous sexual abuse count. Here, as in Rojas, there is nothing in the record to indicate the jury did not understand that count 1 applied to acts during the period of March 23, 2005 to March 22, 2006 and that the other counts applied to acts after that time period. The unanimity instruction reinforced the separate time periods associated with each count, and the prosecutor reminded the jury that it had to find separate acts in order to convict defendant of each count.
It is also not reasonably probable that the jury would have reached a different result had CALCRIM No. 207 not been given. The evidence showed that defendant touched Natalie on a weekly basis from shortly after the touchings began, when she was seven years old, until the summer between fifth and sixth grade, when she would have been 11 years old. The evidence also showed that defendant committed multiple acts of sexual intercourse and sodomy with Natalie. None of the acts were alleged to have occurred on a particular day; they were all alleged to have occurred during a time span of one year or more. On this record, even if the jury had not been instructed that it did not need to find that each offense occurred "exactly on that day," it is not reasonably probable that the jury would have reached a result more favorable to defendant.
H. Ineffective Assistance of Counsel: CALCRIM No. 207
Defendant contends that if his failure to object to CALCRIM No. 207 resulted in forfeiture of his appellate challenge to that instruction, his trial counsel was constitutionally ineffective. We have concluded, however, that there is no reasonable likelihood the jury misapplied CALCRIM No. 207 and no reasonable probability that the jury would have reached a result more favorable to defendant had CALCRIM No. 207 not been given. Thus, defendant cannot establish prejudice from his trial counsel's failure to object. (See Anderson, supra, 25 Cal.4th at p. 569; Strickland, supra, 466 U.S. at p. 694.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.