1 Filed 5/26/15 P. v. Smith CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, su bd. (b); count 3). For counts 2 and 3, the trial court sent enced defendant to state prison for a total term of 31 years to life. On the prosecut or’s motion, the court dismissed count 1.

1 Undesignated statutory references are to the Penal Code.2 Defendant appeals. He contends his conv iction 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 violati ng 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 ol der who engages in oral copulation or sexual penetration, as defined in Sec tion 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, 20 08, 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), a nd 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 th e 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 defenda nt 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 no t forfeit the issue on appeal. ( Id. at p. 259.)3 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 co pulation is any contact, no ma tter how slight, between the mouth of one person and the se xual organ or anus of anothe r person. Penetration is not required. [¶] Sexual penetration means penetra tion, 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 gratificati on. [¶] A foreign object, substance, instrument, or device incl udes any part of the body except a sexual organ.” On count 3, the jury wa s instructed on unanimity: “The defendant is charged with sex crim e with a child 10 years or younger, Penal Code [section] 288.7[, subd ivision] (b) in Count 3 so metime 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 th e defendant committed this offe nse. 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 disc ussed the frequency of defendant’s abuse. With respect to count 3, the prosecutor argued that the st atute went into effective on September 20, 2006, that defendant licke d the victim’s vagina weekly between September 21, 2006, and January 21, 2008, and that to prove th e 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 wa s presented showed that the offense
occurred both before and afte r the effective date. He further argues the jury was not4 asked to find that the offense occurred afte r the effective date and may have found he
committed the offense before or after the effe ctive date of section 288.7. Relying upon the oral pronouncement of the verdict, defend ant argues that the jury’s verdict on count 3 was consistent with a finding that the offens e 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 o ffense occurred after the effective date. “ ‘[A]ny statute which punishes as a cr ime 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 ch arged with crime of any defense available according to law at the time when the act was committed, is prohi bited 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 defenda nt was convicted of 11 counts of lewd acts upon a child sometime betwee n 1992 and 1996. The court sentenced the
defendant to 11 consecutive te rms of 15 years to life under section 667.61, which did not go into effect until November 30, 1994. ( Hiscox, at pp. 256-257.) Si nce 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 co unt 3, which was described as a “sex crime with a child ten (10) years or yo unger, 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 th e word “under” -- “sex crime of a child under 10 years or younger, . . . oral sex while the vict im was 9- to 10-years-old . . . .” (Italics added.) The jury was polled on all counts and asked whether it wa s his or her verdict (“Count 1, the jury’s verdict is guilty. [¶] Juror Numb er 1, is this your verdict?”) and so on. The jurors confirmed their verdicts.5 1994, Hiscox concluded the sentence violated ex pos t facto principles and remanded for resentencing under prior law. ( Id. at pp. 259, 261-262.)
In Hiscox , “neither the prosecution, the defens e, 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 vi ctims to identif y when they were molested with any specificity. The ev idence did not reliably connect the various charges to any time frame othe r than the period between 1992 and 1996. The court did not instruct the jury that its findings under section 667.61 we re restricted to offenses
committed on or after November 30, 1994, and defense counse l raised no ex post facto objection.” ( Hiscox, supra, 136 Cal.App.4th at p. 258.) Where the prosecution relie s upon generic evidence to prove multiple acts of molestation, Hiscox stated that the prosecutor “mus t 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 th e 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 offe nse occurred after the effective date of
section 288.7 in that it had to be unanimous. Thus, the evid ence 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 de fendant was not. Th e 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 a lleged that the crime6 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, Septembe r 21, 2006 through Ja nuary 21, 2008. The People are not required to prove that the cr ime took place exactly on that day, but only that it happened reasonably close to that day.” (Italics added.) We reject defendant’s reliance up on the “reasonably close” language of CALCRIM No. 207 in support of his argument that it cannot be de termined 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 argum ent. “In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the in struction complained of in the context of the instructions as a whole and not in isolation, understood th at instruction in a manner that violated his constitutional rights. [Citations.] We interp ret 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 instructio n 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 Janua ry 21, 2008.” There is no reasonable likelihood that the jury igno red 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.7 DISPOSITION The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

MURRAY , J.

RENNER , J.