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Filed 3/17/ 21 P. v. Rodriguez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. DONACIANO RODRIGUEZ , Defendant and Appellant. A15 8 221

( Contra Costa County Super. Ct. No. 0 5

- 182336

- 8 )

Donaciano Rodriguez appeals from a judgment entered after he was convicted of three counts of oral copulation or sexual penetration
with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b);

counts one to three) , 1 and eight counts of forcible lewd acts on a child under the age of 14 (§ 2 88 , subd. ( b ) (1) ; count s four to 11 )

. Rodriguez

assert s the trial court committed instructional error and failed to award him presentencing conduct credits

. We modify the judgment
and affirm.

1 Undesignated statutory references are to the Penal Code.2 B ACKGROUND A. In September 2012, Jane Doe was nine years old and in the fifth grade

. The next September , Jane began middle school and turned 11
about two months later

— o n November 19, 2013

. While she was in fifth grade and in the beginning of sixth grade , Jane’s uncle, Rodriguez , often picked her up from school and took care of her in the afternoons

. At the time of trial, Jane was 16 years old. Although she did not remember precise dates, s he testified that Rodriguez began touching
her inappr opr iately towards the end of fifth grade and that the touching continued into the beginning of sixth grade , when she changed schools. She recalled being nine or ten years old at the time.
Jane testified that on more than five occasions during this period
when Rodriguez watched her, he touched her bare breasts and orally copulated he r vagina

. H e also digitally penetrated her vagina on at least 10 occasion s and kissed her “[ w ] ith his tongue” at least five time s

. Once or twice, Rodriguez forced Jane to touch his penis. When Rodriguez touch ed her inappropriately, Jane cried and unsuccessfully
resist ed

. Rodriguez threatened to hurt Jane’s mother if she said anything. Jane remembered the molestations continuing through the beginning of sixth grade but stopping before she turned 11 . A lthough
she co uld not recall precise dates, Jane said she stopped seeing Rodriguez a fter the first few months of sixth grade because her mo ther
started pick ing her up every day. When Jan e was asked if this could
have been after she turned 11 , she said, “I don’t think so.” Jane’s school records confirmed that she turned 11 about three months after3

the start of sixth grade. But when Jane was asked if she was sure that Rodriguez’s touching did not occur after she turned 11, she said, “I just don’t remember.”
Jane disclosed the abuse to her mother a few years later

. Jane’s
mother reported her allegations to the police. Jane participated in a forensic interview , wherein she disclosed the same abuse that she
described at trial

. Jane also made a pretext call to Rodriguez

. W hen she confronted him about hi m licking her “boob s ” and touching her “coochie,” he did not protest or deny her allegations

. Instead, h e repeatedly apologized. When Rodriguez was interviewed by police, he admitted licking Jane’s vagina three or four times and touching her bare chest three or four times

. He believed Jane was about nine or 10 years old at the
time. B ut Rodriguez denied kissing Jane inappropriately , digitally penetrating her, or having her touch his penis

. B. Several of Rodriguez’s friends , family members, and other acquaintances testified that he had acted appropriately around
children and that they did not believe he would sexually abuse a child

. C.
T he jury convicted Rodriguez of all 11 counts

. The trial court
sentenced him to an aggreg ate prison term of 94 years to life.
D ISCUSSION A. Rodriguez challenges his convictions on counts one through three, arguing the trial court erred by giving an instruction (CALCRIM No. 207) sta ting that the People we re not required to prove that the crime s4

took place exactly on the date s stated in the information. After reviewing the instructional question de novo ( People v. Cole (2004) 33 Cal.4th 1158, 1215) , we conclud e there was no prejudicial error

. 1. In reviewing a claim of instructional error, we do not judge a single instruction in isolation

. ( People v. Young (2005) 34 Cal.4th 1149 , 1202 .) If an instruction is ambiguous, w e consider whether there is a reasonable likelihood that the jury mis understoo d or misapplied the
law considering all the instructions given and counsel’s arguments. ( Ibid .) W e should interpret a jury instruction to support the judgment , rather than to defeat it , if the instruction is reasonably susceptible to such interpretation

. ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We assume jurors are intelligent people who can understand
and apply instructions to the facts . ( People v. Carey (2007) 41 Cal.4th 109, 130 .)
2

. The trial court gave a modified version of CALCRIM No. 207 , which instructed : “ It is alleged that the crime s occurred on or about
November 1 9th, 2011 through November 18th, 2013. The People are not required to prove that the crime s took place exactly on that da te, but only that it happened reasonably close to that day

. ” (Italics added.) However, section 288.7, subdivision (b), prohibits oral copulation or sexual penetration with a child who has not yet reached their 11th birthday. Accordingly, the trial court also instructed the jury with CALCRIM No. 1128 that, to convict Rodriguez on counts one through three, “the People must prove that: [¶] One, the defendant engaged in an act of oral copulation or sexual penetration wi th [ Jane Doe ] ; [¶] Two,5

when the defendant did so, [ Jane Doe

] was ten years of age or younger ; [¶] Three, at the time of the act the defendant was at least 18 years old. [¶] Under the law, a person becomes one year older as soon as the first minute of .

. . her birthday has begun.” (Italics added.) Jane turned 11 years old on November 19, 2013.
3. Rodriguez insists that CALCRIM No. 207 misstates the law and lowered the prosecution’s burden of proof for counts one through three because, he contends, the instruction suggested that the jury could convict him for an act that occurr ed on or after Jane’s 11th birthday

. The People contend Rodriguez forfeited the argument by failing

to object to the instruction or seek modification below

. We nonetheless
review Rodriguez’s new argument on the merits. (See § 1259 [permitting us to “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were a ffected thereby”]; People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 ( Rojas ) [reaching merits of
similar challenge to CALCRIM No. 207 despite forfeiture ].) CALCRIM No. 207 is not an inaccurate statement of the law . It simply states the general rule that w hen 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 reasonably close to that date. (See § 955; R ojas, supra, 237 Cal. App. 4th at p. 1304 .)
A n exception to the general rule exists whe n the tim ing of the offense is material. Thus, i t is improper to give CALCRIM No. 207 “w hen the prosecution ’ s proof establishes the offense occurred on a6

particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity)

. ” ( People v. Jennings (1991) 53 Cal.3d 334,
358

- 359; accord, People v. Jones (1973) 9 Cal.3d 546 , 557 , overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046 , 1069 & fn. 1 3 ; Bench Notes to CALCRIM No. 207 .) There is no dispute that
th is exception doe s not apply. Nor do we agree with Rodriguez that it is reasonably likely that CALCRIM No. 207 misled or confused the jury regarding the crucial temporal element in CALCRIM No. 1128 , thereby allowing the jury to convict him on counts one, two, or three for an act that occurred after Jane turned 11 years old

. (Cf. Rojas, supra, 237 Cal.App.4th at pp.
1306

- 1307.) The jury was explicitl y instructed that, to convict Rodriguez on counts one, two, or three, the People had to prove that he engaged in an act of oral copulation or sexual penetration with Jane when she “was ten years of age or younger.” The prosecutor’s closing argument also s pecifically discussed CALCRIM Nos. 207 and 1128 and made clear that, with respect to the first three counts, the People bore the burden to show Jane was under the age of 11 when each act
occurred , even if the particular date was otherwise irrelevant

. Defense counsel emphasized the same point. (See People v. Young , supra, 34 Cal.4th at p. 1202 [reviewing court may consider arguments of counsel when assessing e ffect of instruction on jury].)
Th e evidence further supports the conclusion that the jury was not reasonably likely to be confused

. Although defense counsel argued that reasonable doubt existed as to Jane’s age at the time of an act of oral copulat ion or digital penetrat ion , the re was no affirmative
evidence that an act of oral copul ation or digital penetration occurred7

after Jane turned 11 years old

. Jane said she d id n o t remember for

sure whether any touching occurred after she turned 11

. That does not conflict with her testimony that Rodriguez committed at least five acts of oral copulation and a t least 10 acts of digital penetration while she was nine or 10 years old. The jury’s verdicts make clear that they believed Jane’s testimony , which was corroborated by her academic records and her mother’s testimony that Ro driguez babysat Jane when she was in fifth grade. Most importantly, Rodriguez himself admitted that Jane was nine or 10 years old when he orally copulated her

. On this record, there is n o reasonable likelihood a juror would
have concluded acts of digital penetration or oral copulation occurring

“ reasonably close ” but after Jane’s 11th birthday would suffice to
convict Rodriguez on counts one, two, or three. Even if we assume instructional error occurred, we conclude it was harmless. (See Roja s,
supra, 237 Cal.App.4th at p. 1307; People v. Seabourn (1992) 9 Cal.App.4th 187 , 194

. )
B.
R odriguez and the People agree that the trial court erroneously
denied him presentence c onduct credits. Accordingly, w e will modify the judgment. It is undisputed that Rodriguez is entitled to presentence conduct
credits , which are limited to 15 percent because he was convicted of a violent felony. (See §§ 6 6 7 .5, subd. (c), 2933.1, subd s . (a) , (c)

. ) Despite apparently intend ing to award such prese ntence conduct credits, the trial court did not actually calculate or award them

. This amounts to an unauthorized sentence, which can be remedied at any time. (See8

People v. Scott (1994) 9 Cal.4th 331, 353

- 354; People v. Duran (1998) 67 Cal.App.4th 267, 2 70.)
R emand is unnecessar y

. Because the parties agree that Rodriguez is entitled to presentence conduct credits awarded at 15 percent and th at th e trial court correctly award ed 719 actual custody days , we will modify the judgment. ( See People v. Duran, supra, 67 Cal.App.4th at p. 270 .) F ifteen percent of 71 9 days ( rounded to the greatest whole number not exceed ing 15 percent) i s 10 7 days. (See
ibid .) We order the judgment modified to reflect a n award of 826 days of presentence custody

— 7 19 actual days plus 10 7 days for conduct
credit.
D ISPOSITION The judgment is modified to reflect an award of 826 days of presentence c ustody credit s (71 9 actual days and 107 conduct credit s )

. As modified, the judgment is affirmed. T he clerk of the superior court is directed to prepare an amended abstract of judgment stating the correct award of presentence custody credit and to forward a certified copy to the Department of Corrections and Reha bilitation.9 _______________________ BURNS, J.

We concur:

____________________________ SIMONS , ACTING P.J.

____________________________ NEEDHAM , J.

A15 8221