Filed 5/26/15 P. v. Smith CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)




THE PEOPLE,                                                                                  C073881

                   Plaintiff and Respondent,                                   (Super. Ct. No. MF034272A )

         v.

LEON SMITH,

                   Defendant and Appellant.




         A jury convicted defendant Leon Smith of forcible lewd acts upon a child under
the age of 14 years (Pen. Code, § 288, subd. (b); count 1),1 continuous sexual abuse of a
child under the age of 14 years (§ 288.5, subd. (a); count 2), and oral copulation or sexual
penetration of a child 10 years of age or younger (§ 288.7, subd. (b); count 3).
         For counts 2 and 3, the trial court sentenced defendant to state prison for a total
term of 31 years to life. On the prosecutor’s motion, the court dismissed count 1.


1   Undesignated statutory references are to the Penal Code.

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       Defendant appeals. He contends his conviction on count 3 violates ex post facto
principles.2 We reject this contention and will affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       Count 3 charged defendant with violating section 288.7, subdivision (b) “[o]n or
about September 21, 2006 through January 21, 2008.” Section 288.7, subdivision (b)
provides: “Any person 18 years of age or older who engages in oral copulation or sexual
penetration, as defined in Section 289, with a child who is 10 years of age or younger is
guilty of a felony and shall be punished by imprisonment in the state prison for a term of
15 years to life.” Section 288.7 was added in 2006, and took effect immediately, on
September 20, 2006. (Stats. 2006, ch. 337, §§ 9, 62, pp. 2584, 2590-2591, 2668.) The
victim was born on January 22, 1997; thus, on January 22, 2008, the victim turned 11
years of age. Defendant was born on January 31, 1971.
       At trial, the prosecutor presented specific evidence of the dates, the victim’s ages
and class (kindergarten to seventh grade), and the types of defendant’s conduct. The
victim testified that defendant would lick her vagina at least once a week when she was 6,
7, 8, 9, 10, 11, 12, and 13 years of age, from 2003 to 2010. Defendant testified and
denied having ever molested the victim and more particularly, denied having ever orally
copulated her or sexually penetrated her.
       The jury was instructed on count 3 as follows:
       “The defendant is charged in Count 3 with engaging in oral copulation or sexual
penetration with a child under 10 years of age or younger, in violation of Penal Code
section 288.7[, subdivision] (b). [¶] To prove that the defendant is guilty of this crime,



2 Defendant did not raise an ex post facto objection in the trial court. People v. Hiscox
(2006) 136 Cal.App.4th 253 (Hiscox) held that the failure to register an ex post facto
objection in the trial court does not forfeit the issue on appeal. (Id. at p. 259.)



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the People must prove that: [¶] 1. The defendant engaged in an act of oral copulation or
sexual penetration with [the victim]; [¶] 2. When the defendant did so, [the victim] was
10 years of age or younger; [¶] 3. At the time of the act, the defendant was at least 18
years of age. [¶] Oral copulation is any contact, no matter how slight, between the
mouth of one person and the sexual organ or anus of another person. Penetration is not
required. [¶] Sexual penetration means penetration, however slight, of the genital or anal
opening of the other person by any foreign object, substance, instrument, device, or any
unknown object for the purpose of sexual abuse, arousal, or gratification. [¶] A foreign
object, substance, instrument, or device includes any part of the body except a sexual
organ.”
       On count 3, the jury was instructed on unanimity:
       “The defendant is charged with sex crime with a child 10 years or younger, Penal
Code [section] 288.7[, subdivision] (b) in Count 3 sometime during the period of
September 21, 2006 to January 21, 2008. The [P]eople have presented evidence of more
than one act to prove that the defendant committed this offense. You must not find the
defendant guilty unless 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.”
       In opening argument, the prosecutor discussed the frequency of defendant’s abuse.
With respect to count 3, the prosecutor argued that the statute went into effective on
September 20, 2006, that defendant licked the victim’s vagina weekly between
September 21, 2006, and January 21, 2008, and that to prove the offense, “[w]e just need
one time this happened” between those dates. In rebuttal, the prosecutor referred to the
victim’s age as between nine and 10 years of age.
                                      DISCUSSION
       Defendant argues the evidence does not establish a “specific date” on which the
oral copulation occurred and the evidence which was presented showed that the offense
occurred both before and after the effective date. He further argues the jury was not

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asked to find that the offense occurred after the effective date and may have found he
committed the offense before or after the effective date of section 288.7. Relying upon
the oral pronouncement of the verdict, defendant argues that the jury’s verdict on count 3
was consistent with a finding that the offense was committed prior to the effective date.3
We reject defendant’s arguments and conclude that the jury was asked to find and the
evidence supports its verdict that the offense occurred after the effective date.
       “ ‘[A]ny statute which punishes as a crime an act previously committed, which
was innocent when done; which makes more burdensome the punishment for a crime,
after its commission, or which deprives one charged with crime of any defense available
according to law at the time when the act was committed, is prohibited as ex post
facto.’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 39], italics
omitted.)
       In Hiscox, supra, 136 Cal.App.4th 253, the defendant was convicted of 11 counts
of lewd acts upon a child sometime between 1992 and 1996. The court sentenced the
defendant to 11 consecutive terms of 15 years to life under section 667.61, which did not
go into effect until November 30, 1994. (Hiscox, at pp. 256-257.) Since the record did
not reflect beyond a reasonable doubt that the offenses occurred after November 30,




3 In its written verdict, the jury convicted defendant on count 3, which was described as
a “sex crime with a child ten (10) years or younger, victim . . . , DOB: 1.22.97, oral sex
while victim was nine (9) - ten (10) years old, a felony, as charged and set forth in Count
Three (3) of the Information on file herein.” When the jury’s verdict was read in open
court, the clerk misread it to include the word “under” -- “sex crime of a child under 10
years or younger, . . . oral sex while the victim was 9- to 10-years-old . . . .” (Italics
added.) The jury was polled on all counts and asked whether it was his or her verdict
(“Count 1, the jury’s verdict is guilty. [¶] Juror Number 1, is this your verdict?”) and so
on. The jurors confirmed their verdicts.



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1994, Hiscox concluded the sentence violated ex post facto principles and remanded for
resentencing under prior law. (Id. at pp. 259, 261-262.)
       In Hiscox, “neither the prosecution, the defense, nor the court realized that the
effective date of section 667.61 presented a problem of proof regarding when the charged
offenses were committed. The prosecutor did not ask the victims to identify when they
were molested with any specificity. The evidence did not reliably connect the various
charges to any time frame other than the period between 1992 and 1996. The court did
not instruct the jury that its findings under section 667.61 were restricted to offenses
committed on or after November 30, 1994, and defense counsel raised no ex post facto
objection.” (Hiscox, supra, 136 Cal.App.4th at p. 258.)
       Where the prosecution relies upon generic evidence to prove multiple acts of
molestation, Hiscox stated that the prosecutor “must establish a time frame for the
offenses sufficient to bring them within the scope of any statutory or constitutional
limitation on punishment.” (Hiscox, supra, 136 Cal.App.4th at p. 260.) But if “the
evidence leaves no reasonable doubt that the underlying charges pertained to events
occurring on or after” the effective date, the verdict will be upheld. (Id. at p. 261.)
       Based on the charging document, the prosecutor’s argument, and the unanimity
instruction, the parties and court were aware of the effective date of section 288.7. The
jury was asked to decide whether the offense occurred after the effective date of
section 288.7 in that it had to be unanimous. Thus, the evidence reflects that defendant
engaged in the conduct alleged in count 3 countless times from September 21, 2006,
through January 21, 2008. The jury convicted defendant on all counts. The jury
determined the victim was credible and defendant was not. The evidence leaves no
reasonable doubt that defendant violated section 288.7 on or after the effective date.
       In support of his argument that the jury was not required to find that the offense
was committed on or after September 20, 2006, the effective date of section 288.7,
defendant relies on CALCRIM No. 207 given to the jury: “It is alleged that the crime

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occurred on or about, as to Count 1, in June 2010; as to Count 2, April 1, 2008 through
January 21, 2011; as to Count 3, September 21, 2006 through January 21, 2008. 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.” (Italics added.)
       We reject defendant’s reliance upon the “reasonably close” language of
CALCRIM No. 207 in support of his argument that it cannot be determined whether the
jury relied on an act committed before or after the effective date of section 288.7. The
instructions are read as a whole and language in a particular instruction is not read in
isolation as defendant has done in support of his argument. “In reviewing claims of
instructional error, we look to whether the defendant has shown a reasonable likelihood
that the jury, considering the instruction complained of in the context of the instructions
as a whole and not in isolation, understood that instruction in a manner that violated his
constitutional rights. [Citations.] We interpret the instructions so as to support the
judgment if they are reasonably susceptible to such interpretation, and we presume jurors
can understand and correlate all instructions given.” (People v. Vang (2009)
171 Cal.App.4th 1120, 1129.)
       As reasonably read, the unanimity instruction told the jury that it had to determine
whether the prosecution proved that defendant violated section 288.7 “sometime during
the period of September 21, 2006 to January 21, 2008.” There is no reasonable
likelihood that the jury ignored this instruction and found defendant committed the act
before the period alleged, relying on the “reasonably close” language. Defendant has
failed to demonstrate an ex post facto violation.




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                                    DISPOSITION
     The judgment is affirmed.



                                        BLEASE    , Acting P. J.


We concur:


        MURRAY                   , J.


        RENNER                   , J.




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