Filed 9/23/13 P. v. Sam 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C069687

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF11620)

         v.

NANG SAM,

                   Defendant and Appellant.




         This case involves sexual abuse by defendant Nang Sam of his younger sister (the
victim). Defendant was entrusted with caring for her and his other younger siblings
because their mother was largely absent. Defendant violated that trust for years by
sexually abusing the victim, culminating in his prosecution and guilty verdict of 36
counts of lewd acts and sexual penetration. The court sentenced him to a determinate
term of 10 years in prison plus an indeterminate term of 40 years to life.
         On appeal, defendant raises four contentions dealing with (1) juror excusal, (2)
sufficiency of evidence, (3) instructional error resulting in ex post facto violations, and
(4) shackling. Finding merit only in defendant‟s contention of instructional error
resulting in ex post facto violations (which the People concede), we reverse defendant‟s


                                                             1
convictions for two counts of sexual penetration. (This reversal has no practical effect on
defendant‟s sentence, because the trial court sentenced defendant to concurrent sentences
on those counts, which were counts 23 and 24.)
                    FACTUAL AND PROCEDURAL BACKGROUND
       The victim, who was born in May 1996, is the youngest of seven siblings, who as
relevant here included defendant, Ny, Chun, and Danny. Defendant is the oldest, born in
February 1984. Their mother was “never home,” so defendant was entrusted with caring
for the other children. Below is an abbreviated recitation of the facts, which will be
recounted in greater detail in the discussions of sufficiency of evidence (part II) and
instructional error (part III).
       Defendant started sexually abusing the victim when she was about six or seven
years old, after the entire family had moved to a home on Casselman Drive (the first
Casselman home) on May 1, 2003. Her other brothers had gone out and she wanted to go
with them, but defendant made her stay home with him. Defendant touched her “private
areas.” During other times, defendant would use the ruse of hide and seek to capture the
victim and touch her private parts. The touchings progressed to penetration of the
victim‟s vagina and anus with defendant‟s penis and fingers. These touchings and
penetrations continued when the family moved four houses down to another house on
Casselman Drive (the second Casselman house) on July 1, 2005.
       The last time defendant touched the victim was when he came into the room she
shared with her brother Chun. As defendant “was touching [her],” he noticed there was
“blood so he went out [of] the room . . . .” The victim had started menstruating when she
was 12.
       In November 2010, the victim reported the molests to Sophy Dong, who was the
fiancé of the victim‟s brother Ny.




                                              2
       In early December 2010, Dong texted defendant, stating (without elaborating) that
what he had done to the victim was very “sick and wrong.” Defendant responded that he
thought of killing himself every day, he never wanted “that” to happen, and what he did
was “very sinful.”
       In mid-December 2010, Dong drove the victim to the police department to report
the molests.
       In January 2011, the victim was interviewed at the Multi Disciplinary Interview
Center for a couple hours by a police officer. (We will refer to this person later as the
interviewer.)
       In February 2011, defendant voluntarily participated in a police interview where
he admitted to Detective Eric Angle some of the sexual conduct with the victim.
       At trial, defendant did not testify and his defense in closing argument was that the
victim‟s story “d[id]n‟t wash” because somebody would have witnessed the molests and
there was no evidence defendant “penetrated [the victim] in any fashion.”
                                       DISCUSSION
                                              I
                            The Court Was Within Its Discretion
                     To Deny Defendant’s Request To Excuse Juror No. 8
       Defendant contends the trial court erred in failing to excuse Juror No. 8. He
argues the juror committed misconduct because she intentionally concealed that she had
been a child molest victim; the trial court erred in failing to apply the presumption of
prejudice that arises when such misconduct comes to light; and the judgment must be
reversed because the People cannot rebut the presumption of prejudice that arises from
the misconduct.
       As we explain, defendant has forfeited the issue of whether Juror No. 8
intentionally concealed the information, and the trial court acted within its discretion in
concluding she was not biased.

                                              3
                                             A
                Facts Behind Defendant’s Request To Remove Juror No. 8
       Each prospective juror filled out a questionnaire that asked about qualifications to
sit on this case. Question 27 asked the following: “Everyone has some biases, prejudices
or preconceived ideas. Do you believe you have any which would interfere with your
ability to fairly decide this case?” Juror No. 8 checked “yes” and in the lines asking, “If
yes, please explain,” Juror No. 8 wrote, “I have known an individual who (as a minor)
was abuse[d] by a sibling, a potential bias.” Question 43 asked, “Have you, a family
member, or a friend, ever been a witness to a sexual assault or sexual misconduct . . . .?”
Defendant checked “yes.” In the lines asking, “If yes, please explain,” Juror No. 8 wrote,
“would prefer not to explain.” In the lines asking, “What action did you take, if any, as a
result of what you witnessed or what you were told,” Juror No. 8 wrote, “no action.” On
the day of jury selection, August 2, 2011, nobody questioned Juror No. 8 about her
responses. Defense counsel did not object to her for cause, either, and she was seated as
a juror.
       On August 2, 2011, Juror No. 8 submitted the following note to the court: “In my
question[nai]re I had filled out that I had personal reasons for which I believe I would be
biased in this case. These reasons are of a very personal nature and I had hoped I would
not have to discuss them. As a youth I had been molested by a family member. This was
not something I had ever discussed with anyone and would prefer not to discuss it further.
I am not sure I would be biased in either side but this case would bring me much
emotional trauma, considering my situation. I would please ask you to dismiss me f[rom]
this trial. I have worked many years to cope with my situation, please understand.”
       First thing on August 3, 2011, the court questioned Juror No. 8 with both sides
present. The court asked, “Are the views you expressed in the letter you sent me
yesterday still your views today?” Juror No. 8 responded, “Yes, I think I could be non-
biased, but I do think that it would be more emotionally draining than -- I understand

                                             4
that‟s not really a good reason, but that still stands.” She continued, “Like I said, I mean,
I really do think that I could be non-biased. I just wanted to let it be known to both of the
attorneys and to yourself the situation and it will just be difficult emotionally.”
       The juror then left the courtroom and the court told the attorneys the following:
“It‟s my belief that [Juror No. 8] will do everything she can to abide by her oath, and for
that reason, I do not find good cause at this point to excuse her . . . .” Defense counsel
then stated, “Just to recite my position in chambers was that she should be replaced by an
alternate given the letter which appears to state that she cannot be unbiased and she
cannot be fair.” The prosecutor responded, “That is not what the letter states.” The court
concluded, “She said she could be unbiased, but that it was going to be very emotional.
The letter speaks for itself.”
                                              B
Defendant Has Forfeited His Argument That Juror No. 8 Intentionally Concealed Facts;
  The Trial Court Was Within Its Discretion To Conclude Juror No. 8 Was Not Biased
       Defendant‟s contention of error begins with an argument that Juror No. 8
committed misconduct in violation of his right to trial by an unbiased, impartial jury by
“intentionally conceal[ing] the fact that she herself was a molest victim.” Defendant has
forfeited this argument by failing to raise it in the trial court. (People v. Esquibel (2008)
166 Cal.App.4th 539, 556 [the failure to object in the trial court, even to errors of
constitutional dimension, may lead to forfeiture of the claim on appeal].) In the trial
court, defendant argued the court should discharge Juror No. 8 “given the letter which
appears to state that she cannot be unbiased and she cannot be fair.” Intentional
concealment and bias are two separate issues for the trial court, each of which when
raised the appellate court analyzes separately. (See People v. McPeters (1992) 2 Cal.4th
1148, 1175 [noting the two issues as separate and then analyzing whether a juror‟s
nondisclosure was inadvertent and then analyzing under an abuse of discretion standard
whether the juror was biased].) By failing to raise the issue of whether the nondisclosure

                                              5
was intentional, defendant deprived the trial court of the opportunity to assess the issue of
whether the concealment was intentional, which was critical, because a trial judge “is in
the best position to assess the state of mind of a juror or potential juror on voir dire
examination.” (Ibid.)
       As to the issue defendant did raise in the trial court, i.e., that Juror No. 8 was
biased because she could not be fair, the court was well within its discretion to conclude
otherwise. (People v. McPeters, supra, 2 Cal.4th 1148, 1175 [standard of review].) On
the juror questionnaire, she was advised to base her decision on only the evidence
presented in court. When asked if she could do that, she answered “yes.” The same
questionnaire also advised her to follow the law as the judge explained it, whether or not
she agreed with it. When asked if she could do that, she again answered “yes.” After she
was selected as a juror, but before presentation of the evidence, she submitted the letter to
the court about her prior molestation. (Id. at p. 1175 [juror‟s candid disclosure before the
trial began supported the trial court‟s determination that the juror could be fair and
impartial].) Finally, when questioned by the court about her letter, she twice stated she
thought she could be “non-biased.” On this record, the court was within its discretion to
conclude Juror No. 8 was not biased and therefore could remain on the jury.
                                              II
                        Sufficient Evidence Supported The Verdicts
       Defendant contends there was insufficient evidence of counts 2 and 3, 5 through
12, and 14 through 36 because the People failed to “prove[] the time-specific crimes with
which it chose to charge [him].” He claims that the evidence failed to establish that an
offense occurred during any of the time frames alleged in the information.
       We begin with a brief overview of how the case was charged and a few basic
propositions and then turn to the specific evidence offered to support the at-issue counts.
The People‟s theory of the case as stated in closing argument was “[s]ix counts a year for
six years is what the defendant is charged with.” Consistent with this argument, the

                                               6
information alleged 36 counts, starting on May 1, 2003, each with a two-month time
period (i.e., count 1 occurred “[o]n or about and between May 1, 2003 and July 6, 2003,”
count 2 occurred “[o]n or about and between July 7, 2003 and September 6, 2003,” etc.).
       “[G]eneric testimony” regarding child molestation “is sufficiently substantial from
an evidentiary standpoint.” (People v. Jones (1990) 51 Cal.3d 294, 313-314.) The victim
must be able to describe (1) the kind of act or acts committed with sufficient specificity to
assure unlawful conduct has occurred and to differentiate between types of conduct, (2)
the number of acts with sufficient certainty to support the number of counts, and (3) the
general time period to assure the acts were committed within the applicable statute of
limitations. (Id. at p. 316.) “Where alibi is not a defense, the prosecution need only
prove the act was committed before the filing of the information and within the period of
the statute of limitations. [Citation.] This is so because the precise time of a crime need
not be declared in the accusatory pleading except where time is a material ingredient of
the offense. [Citation.] Time is essential if the defense is alibi.” (People v. Obremski
(1989) 207 Cal.App.3d 1346, 1354.) In Obremski, the defendant was charged with 26
sex crimes and the jury found him guilty of 25. (Id. at p. 1348.) The crimes were
committed against his stepdaughter starting when she was 12 for five years when they
were living together. (Id. at pp. 1348-1349.) During this period, they “had sexual
intercourse at least once a week and as often as three times a day.” (Id. at p. 1349.)
“Appellant‟s defense was (1) he was physically incapable of having sex and (2) [the
victim‟s] testimony was not credible.” (Id. at p. 1350.) The appellate court affirmed the
convictions, reasoning: “Since the exact times of the offenses are not material in the case
before us, in that appellant did not attempt to prove an alibi and had uninterrupted access
to the victim, the imprecise charges did not mislead him and violate his right to due
process.” (Id. at p. 1354.)
       With these points in mind, we turn to the counts that defendant has alleged lack
sufficient evidence.

                                             7
                                               A
                                        Counts 2 And 3
       Count 2 and count 3 were lewd acts on a child under 14, alleged to have occurred
“[o]n or about and between” July 7, 2003 and September 6, 2003 and September 7, 2003,
and November 6, 2003, respectively. The following was evidence of count 2: The first
vaginal touching was at the first Casselman house. Defendant touched the skin of her
legs, “boobs,” and “private parts.” The family moved to the first Casselman house on
May 1, 2003 and lived there until July 1, 2005, at which time they moved four houses
down to another house on that drive. The following evidence supported count 3: The
victim told the interviewer that defendant “raped” her a “couple of weeks later,” and
defined rape as “t[a]k[ing] my virginity away.” Similarly, defendant told Detective
Angle the first vaginal intercourse happened at the first Casselman house, which he
thought occurred a month after the first sexual contact.
                                               B
                                     Counts 5 Through 12
       Count 5 alleged a lewd act “[o]n or about and between January 7, 2004 and
March 6, 2004.” Defendant admitted to Detective Angle he started molesting the victim
when she was six or seven years old and he “did it for a little bit.” He would “take [his]
penis out . . . [and] just rub it a little bit” “around her . . . vagina.” During the time period
alleged in count 5, the victim was seven years old.
       Count 6 alleged a lewd act “[o]n or about and between March 7, 2004 and
April 30, 2004.” The victim was still seven years old. Defendant admitted to Detective
Angle that he rubbed his penis around the victim‟s vagina more than once, i.e., he would
get “possessed again . . . and then it would happen again -- same thing.”




                                                8
       Count 7 alleged a lewd act “[o]n or about and between May 1, 2004 and July 7,
2004.” Defendant admitted to Detective Angle that he stuck his finger in the victim‟s
anus once and then stopped, when the victim was eight years old. By May 1, 2004, the
victim had turned eight.
       Count 8 alleged a lewd act “[o]n or about and between July 8, 2004 and
September 7, 2004.” The victim told the interviewer defendant made her “grab his dick
and then go up and down on it” and that it happened at the first Casselman house (in
addition to happening at the second one). They lived at the first house from May 1, 2003
through July 1, 2005.
       Count 9 alleged a lewd act “[o]n or about and between September 8, 2004 and
November 7, 2004.” The victim told the interviewer defendant “put his fingers in [her]
vagina and then rape[d] [her] there.” Defendant admitted to Detective Angle he did that
to her once when she was eight years old. During the time period alleged in this count,
the victim was eight years old.
       Count 10 alleged a lewd act “[o]n or about and between November 8, 2004 and
January 7, 2005.” This count is supported by evidence defendant touched the victim‟s
private parts outside her clothing while playing hide and seek “once in awhile” at the first
Casselman house. Similarly, one of the victim‟s other brothers (Chun) testified they all
played hide and seek “[a]bout five times . . . over six or seven months.” The family lived
at the first Casselman house until July 1, 2005.
       Count 11 alleged a lewd act “[o]n or about and between January 8, 2005 and
March 7, 2005.” The victim told the interviewer when she was eight years old, defendant
woke her up, told her to go into the bathroom, and then “[t]old [her] to put [her] hands on
the toilet and . . . [h]e pulled [her] pants down and then he stuck his wiener into [her]
butthole.” The victim was eight years old at the time frame alleged. She thought this
was the first time defendant sodomized her.



                                              9
       Count 12 alleged a lewd act “[o]n or about and between March 8, 2005 and
April 30, 2005.” The victim told the interviewer he would sodomize her “[l]ike every
other day or twice a week” or “just like whenever he felt like doing it.” Based on this
evidence, the jury could have found defendant sodomized her the few weeks following
the first incident.
                                            C
                                  Counts 14 Through 36
       Count 14 and beyond alleged conduct during the time the family lived at the
second Casselman house, as those counts occurred “[o]n or about and between” July 9,
2005 and beyond, and the family moved to the second house on July 1, 2005.
       Count 14 alleged a lewd act “[o]n or about and between July 9, 2005, and
September 8, 2005.” The victim told the interviewer defendant “raped [her] in [her] butt”
when she and Chun slept in the living room.1 She explained he would do that “every
other night” because it was “a[n] easy way for him to come „cause . . . we didn‟t have any
doors there so he can just come and then he would rape me right there and then - and then
he‟ll go back inside his room.”




1       The victim told the interviewer she and Chun slept in the living room of the
second Casselman house until their brothers Ny and Danny moved out. When they slept
in the living room, the victim slept on a twin bed and Chun slept on a couch. Once Ny
and Danny moved out, the victim and Chun moved into their bedroom and their mother
bought a bunk bed for the victim and Chun. According to Dong, Ny moved out of the
second Casselman home and into an apartment in Natomas with her in January 2008.

                                            10
       The victim‟s statement that defendant raped her “every other night” also supported
defendant‟s convictions for lewd acts or sexual penetration alleged in counts 15 through
22 and counts 25 and 28, since those counts all occurred on or before January 2008 when
Ny moved out and Chun and the victim got the bedroom and a bunk bed.2
       Counts 23 and 24 alleged defendant engaged in two acts of sexual penetration with
a child 10 years old or younger “[o]n or about and between” January 10, 2007 to
March 9, 2007 and March 10, 2007 to April 30, 2007. The victim was 10 years old
during these time frames. The victim told the interviewer that while at the second
Casselman house, defendant would touch her “always with his hands. Like he would
actually like mess - like put his fingers in my vagina and then rape me there. And then he
would sometimes rape me in the butt. It was always switching off. And then sometimes
he would want to like rape me from my vagina. It was just like always on and off, like
different times.” When the interviewer asked her how many times defendant had put his
fingers in her vagina, she said, “I don‟t know, a couple times.”3




2      Count 15 alleged a lewd act “[o]n or about and between September 9, 2005 and
November 8, 2005.” Count 16 alleged a lewd act “[o]n or about and between
November 9, 2005 and January 8, 2006.” Count 17 alleged a lewd act “[o]n or about and
between January 9, 2006 and March 8, 2006.” Count 18 alleged a lewd act “[o]n or about
and between March 9, 2006 and April 30, 2006.” Count 19 alleged a lewd act “[o]n or
about and between May 1, 2006 and July 9, 2006.” Count 20 alleged a lewd act “[o]n or
about and between July 10, 2006 and September 19, 2006.” Count 21 alleged a sexual
penetration “[o]n or about and between September 20, 2006 and November 9, 2006.”
Count 22 alleged a sexual penetration “[o]n or about and between November 10, 2006
and January 9, 2007.” Count 25 alleged a lewd act “[o]n or about and between May 1,
2007 and July 10, 2007.” Count 26 alleged a lewd act “[o]n or about and between
July 11, 2007 and September 10, 2007.” Count 27 alleged a lewd act “[o]n or about and
between September 11, 2007 and November 10, 2007.” And Count 28 alleged a lewd act
“[o]n or about and between November 11, 2007 and January 10, 2008.”
3      In part III of the Discussion, we will explain that although the evidence was
sufficient to support counts 23 and 24, there was instructional error associated with these

                                            11
       Counts 29 through 31 and counts 33 through 35 alleged more lewd acts. Count 29
alleged a lewd act “[o]n or about and between January 11, 2008 and March 10, 2008.”
Count 30 alleged a lewd act “[o]n or about and between March 11, 2008 and April 30,
2008.” Count 31 alleged a lewd act “[o]n or about and between May 1, 2008 and July 11,
2008.” Count 33 alleged a lewd act “[o]n or about and between September 12, 2008 and
November 11, 2008.” Count 34 alleged a lewd act “[o]n or about and between
November 12, 2008 and January 11, 2009.” And count 35 alleged a lewd act “[o]n or
about and between” January 12, 2009 and March 11, 2009. The victim told the
interviewer that when she and Chun shared a room, defendant “would always come in the
room every night - not every night but every time he wanted to touch me” and then “he
would try to touch me and then he would rape me and . . . I was just scared.” Chun
testified defendant came into his and the victim‟s room around midnight “once every few
months.” As noted, the victim and Chun shared a bedroom at the second Casselman home
after Ny moved out, which was January 2008.
       Count 32 alleged defendant committed a lewd act “[o]n or about and between
July 12, 2008 and September 11, 2008.” The victim told the interviewer that when they
were at the second Casselman house, defendant “pulled [her] underwear down and pulled
his pants and [then] started raping [her]” with “his wiener” in “[h]er . . . butthole.” It was
during the summer when she was going into sixth grade, which would have made it the
summer of 2005 when she was 11. However, the jury could have found, based on other
evidence, the crime took place in the summer of 2008, because the victim also told the
interviewer the incident took place at a time when Chun had a room, which would have
been after January 2008, when she and Chun took over Danny and Ny‟s room.




counts that was not harmless beyond a reasonable doubt, requiring reversal of these
counts.

                                             12
         Count 36 alleged defendant committed a lewd act “[o]n or about and between
March 12, 2009 and April 30, 2009.” The victim told the interviewer defendant came
into the room she shared with Chun, “was touching [her],” “noticed there was blood so he
went out the room and . . . that‟s the last time.” The victim started menstruating when
she was 12. Since the victim was born in May 1996, she was 12 during the alleged time
frame.
         On this record, sufficient evidence supported the verdicts.
                                              III
            The Court Erred In Its Instructions Regarding Counts 21 Through 24,
                   And The Error Was Prejudicial As To Counts 23 And 24
         Defendant contends his convictions for counts 21 through 24 for sexual
penetration must be reversed because the trial court did not instruct the jury that it was
required to find that the offenses took place on or after the effective date of Penal Code
section 288.7, which was September 20, 2006. (Stats. 2006, ch. 337, § 9 [Sen. Bill
1128].) Penal Code section 288.7, subdivision (b) increased the punishment for sexual
penetration from three, six, or eight years to 15 years to life in prison. (Cf. Pen. Code,
§ 288.7, subd. (b) [“Any person 18 years of age or older who engages in . . . sexual
penetration . . . with a child who is 10 years of age or younger . . . shall be punished by
imprisonment in the state prison for a term of 15 years to life”] with Pen. Code, § 289,
subd. (j) [“Any person who participates in an act of sexual penetration with another
person who is under 14 years of age and who is more than 10 years younger than he or
she shall be punished by imprisonment in the state prison for three, six, or eight years]”.)
We agree there was instructional error and find that the error was prejudicial as to counts
23 and 24.




                                              13
                                             A
                                     The Court’s Error
       Count 21 alleged a sexual penetration “[o]n or about and between September 20,
2006 and November 9, 2006.”
       Count 22 alleged a sexual penetration “[o]n or about and between November 10,
2006, and January 9, 2007.”
       Counts 23 alleged a sexual penetration “[o]n or about and between January 10,
2007 to March 9, 2007.”
       Count 24 alleged a sexual penetration “[o]n or about and between March 10, 2007
and April 30, 2007.”
       The court instructed the jury pursuant to CALCRIM No. 207 as follows: “It is
alleged that the crimes occurred on various 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.”
       During deliberations, the jury asked the following question: “No dates are
specifically mentioned in the instructions to the jury, only on the charges. The text of
288.7(a) and 288.7(b) charge that the defendant had intercourse with or penetrated a
person under the age of 10. However, no dates are mentioned in the text of the penal
code. [¶] Are we supposed to convict the defendant for breaking the penal code, or only
for breaking the penal code reasonably close to the dates the charges cover?”
       The court responded as follows:
       “The defendant is charged in each count with committing the alleged crime „[o]n
or about and between‟ a specified date and time. I have provided you with a chart that
lists the particular time period associated with each count.




                                             14
       “The People have presented evidence of more than one act to prove that the
defendant committed the crimes during the period alleged. You must not find the
defendant guilty unless you all agree that the People have proved that the defendant
committed at least one of the acts during the period alleged and you all agree on which
act he committed.”
       The court then recited the offense dates alleged as to counts 21 through 24. The
court then stated, “In order to convict the defendant of any of these crimes, the
prosecution must prove that the defendant committed the charged crime on or about and
between the dates specified for that particular count.”
       As the People concede, the court‟s instruction was error because ex post facto
principles prohibit a conviction for these crimes unless they occurred on or after the
effective date of the statute, which was September 20, 2006. (See Collins v. Youngblood
(1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 39] [“ „It is settled, by decisions of this Court so
well known that their citation may be dispensed with, that any statute . . . 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‟ ”].)
                                             B
The Court’s Error Was Harmless Beyond A Reasonable Doubt As To Counts 21 And 22,
                     But It Was Prejudicial As To Counts 23 And 24
       An ex post facto violation is reviewed to determine whether the violation is
harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705, 710-711]. (People v. Hiscox (2006) 136 Cal.App.4th 253, 261.)




                                             15
                                              1
                                  Counts 21 And Counts 22
       Count 21 alleged a sexual penetration “[o]n or about and between September 20,
2006 and November 9, 2006,” and count 22 alleged a sexual penetration “[o]n or about
and between November 10, 2006, and January 9, 2007.”
       The victim told the interviewer that defendant “raped [her] in [her] butt” when she
and Chun slept in the living room in the second Casselman house, which was from
July 1, 2005 (when the family first moved to the second Casselman house) to January
2008 (when Ny moved out and Chun and the victim got his bedroom). Based on the
jury‟s verdict finding defendant guilty on all counts, it is clear the jury believed the
victim‟s testimony and not defendant‟s. Based on her testimony that defendant “raped
[her] in [her] butt” “every other night” (that would have encompassed the charged dates),
we find the error in failing to instruct the jury it had to find the conduct occurred on or
after September 20, 2006, harmless.
                                              2
                                      Counts 23 And 24
       Counts 23 alleged a sexual penetration “[o]n or about and between January 10,
2007 to March 9, 2007.” Count 24 alleged a sexual penetration “[o]n or about and
between March 10, 2007 and April 30, 2007.” The victim was 10 years old during these
time frames. And this was during the time the family was in the second Casselman
house. The victim told the interviewer that defendant would touch her “always with his
hands. Like he would actually like mess - like put his fingers in my vagina and then rape
me there. And then he would sometimes rape me in the butt. It was always switching
off. And then sometimes he would want to like rape me from my vagina. It was just like
always on and off, like different times.” However, when the interviewer asked her how
many times defendant had put his fingers in her vagina, she said, “I don‟t know, a couple
times.” The People argue the error was harmless.

                                              16
       However, because the evidence left open the possibility that defendant digitally
penetrated the victim only twice (unlike every other day with counts 21 and 22) over a
long time period (from July 1, 2005 during the time she lived at the second Casselman
house to the time Danny and Ny moved out, which was January 2008), some of which
predated the effective date of the statute, we cannot declare the instructional error was
harmless beyond a reasonable doubt. As the jury question disclosed, the jury was having
trouble determining when the charged penetrations occurred. “Since the jury was not
asked to make findings on the time frame within which the offenses were committed, the
verdicts cannot be deemed sufficient to establish the date of the offenses unless the
evidence leaves no reasonable doubt that the underlying charges pertained to events
occurring on or after [the statute‟s effective date]. [Citation.] It would be inappropriate
for us to review the record and select among acts that occurred before and after that date,
or to infer that certain acts probably occurred after that date. [Defendant] has a
constitutional right to be sentenced under the terms of the laws in effect when he
committed his offenses. For a court to hypothesize which acts the jury may have based
its verdicts on, or what dates might be attached to certain acts based on ambiguous
evidence, would amount to „judicial impingement upon the traditional role of the jury.‟ ”
(People v. Hiscox, supra, 136 Cal.App.4th at p. 261.) Here, as we have noted, the
evidence was ambiguous as to how many of these penetrations occurred and also when
they occurred and it is not for us to decide on which acts the jury based its verdict.
       We then turn to the remedy. The problem here was instructional error -- the court
failed to instruct the jury that it must find the conduct occurred on or after September 20,
2006. But, as we discussed in part II, there was substantial evidence defendant
committed at least two acts of sexual penetration that could have occurred within the time
frame. Because there was sufficient evidence to support these counts, the trial court‟s
erroneous instruction does not bar retrial of these counts, if the People so choose.
(People v. Hallock (1989) 208 Cal.App.3d 595, 607 [If there is sufficient evidence to

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convict defendant of the crime but reversal is predicated on instructional error, “double
jeopardy principles do not come into play”].)
                                              IV
            Defendant Has Failed To Establish He Was Shackled During Trial
       Defendant contends the trial court erred in shackling him “during trial without
justification.” As we explain, defendant has not established the preliminary fact that he
was shackled during trial.
       “Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively
demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) The only
indication in the record that defendant was in fact shackled at all (let alone during trial)
was that the court gave CALCRIM No. 204 which stated, “The fact that physical
restraints have been placed on the defendant is not evidence. Do not speculate about the
reason. You must completely disregard this circumstance in deciding the issues in this
case. Do not consider it for any purpose or discuss it during your deliberations.”
Defendant has not cited to, and we have not found, any indication he was shackled during
trial, such as a shackling order, a motion to shackle or unshackle defendant, or any
reference to defendant being physically restrained in court.
       What we have found is reference to defendant being remanded to the sheriff‟s
custody at the end of trial each day. It is plausible the court gave the shackling
instruction to inform jurors not to draw any adverse inferences if they saw defendant
being transported to and from the court in restraints. “The customary practice of utilizing
physical restraints while transporting a prisoner from place to place, e.g., from jail to
courtroom and back, is a matter of common knowledge and generally acknowledged as
acceptable for the protection of both the public and defendant. It has, in fact, been
established that it is legally permissible to transport a prisoner to the courtroom in
physical restraints.” (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141.)

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       Thus, given defendant‟s failure to establish the preliminary fact that he was
shackled during trial, we reject defendant‟s claim of error.
                                      DISPOSITION
       Counts 23 and 24 are reversed and the case is remanded to the trial court for
proceedings consistent with this opinion. In all other respects, defendant‟s convictions
are affirmed.



                                                    ROBIE        , J.



We concur:



      HULL          , Acting P. J.



      MAURO           , J.




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