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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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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, 

 Plaintiff and Respondent, 

 v. 

LEON SMITH, 

 Defendant and Appellant. 

C073881 

(Super. Ct. No. MF034272A ) 

 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. 
2 

 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.