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Filed 8/4/14 P. v. Scott 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ordered 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, A139229

v. (Alameda County

Super. Ct. No. H49457)

DANIEL JAMES SCOTT,

Defendant and Appellant.

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A jury convicted Daniel James Scott of misdemeanor assault (Pen. Code, § 240)1

and felony continuous sexual abuse of his daughter, a child under 14 (§ 288.5, subd. (a)). 

The trial court sentenced him to state prison. 

Scott appeals. He contends the court erred by instructing the jury pursuant to

CALCRIM No. 207 that the prosecution need not prove the crimes took place on specific 

dates, but rather “happened reasonably close to those dates.” Scott also claims the court 

erred by instructing the jury pursuant to CALCRIM No. 307 that the prosecution need not 

prove “the defendant had a motive to commit any of the crimes charged.”

We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

 

1 Unless noted, all further statutory references are to the Penal Code.
2

The People charged Scott with aggravated sexual assault of his daughter, a child 

seven to 14 years old (§ 269, subd. (a)(5)) (count 1), forcible oral copulation (§ 288a, 

subd. (c)(2)) (count 2) and continuous sexual abuse of his daughter, a child under 14

(§ 288.5, subd. (a)) (count 3.) 

Trial

Jane Doe was born in March 1995. Scott is Doe’s father. Scott sexually molested 

Doe about 500 times from 2002 — when she was seven — until December 2009 or 

January 2010, when she was 14. Doe reported the abuse in April 2010, shortly after she 

turned 15. 

Doe lived in a house with her paternal great grandmother from age four to 14. 

Scott moved into the house when Doe was four. When Doe was seven years old, Scott 

began touching her breasts. He did it at night, predominately in his room. When Doe 

turned nine, Scott began to “wrestle” with her by rubbing his penis against her vagina 

while he touched her breasts. Doe always tried — unsuccessfully — to stop the abuse; 

Scott sometimes pinned Doe’s arms down as he rubbed against her. 

The abuse escalated when Doe turned 10. Scott touched Doe’s vagina with his 

hand under her underwear and forced her to masturbate him. Around this time, Scott was 

molesting Doe “once or twice a month” and sometimes up to “seven times” a month. 

When Doe was 12 or 13, Scott digitally penetrated her; on another occasion, he pulled 

her head back and put his penis in her mouth, causing Doe to feel like she “was being

choked.” 

Doe tried to avoid Scott, but she did not report the abuse because she was afraid 

no one would believe her and she “would have to go back to see [her father,] and he’d be 

angry.” Doe became depressed and started cutting herself with a knife. In April 2010, 

near the end of her freshman year in high school, Doe told classmates about the abuse. 

Doe also told her high school counselor Scott started abusing her when she “was about 7 

years old” and “the last time that it took place [was] . . . December of 2009.” Doe 

repeated the allegations to a police officer and to a counselor at Child Abuse Listening, 

Interviewing and Coordination Center (CALICO). 
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Scott did not testify. The defense theory was Doe fabricated the allegations in part

because she wanted to live with her mother. Defense counsel tried to demonstrate Doe 

was “unbelievable” and tried to show her “entire story [was] suspect” by focusing on 

minor inconsistencies between how Doe described the abuse to the police and to the 

CALICO counselor. 

In her closing argument, the prosecutor claimed the molestation occurred over “a 

big time frame” and explained: “[t]here’s not an adult who would be able to specify all of 

the events that occurred within [that] time. [¶] [T]here’s too many times to remember.” 

Additionally, the prosecutor noted “there are so many different acts [of abuse] that 

occurred . . . that being able to prove a specific date really becomes an impossibility.” 

The prosecutor argued, however, most of the molestation occurred well before Doe 

turned 14: “we know between the ages of 7 and 12 years old, many of the acts occurred.” 

Jury Instructions

Pursuant to CALCRIM No. 207, the court instructed the jury: “It is alleged that the 

crime of aggravated sexual assault of a child under the age of 14 occurred between March 

28, 2007 and March 27, 2009, the crime of forcible oral copulation occurred between 

December 15, 2009 and January 2010, and that continuous child sex abuse continued

between March 2002 and March 2007. The People are not required to prove that the 

crime took place exactly on that date but only that it happened reasonably close to those 

dates.”

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The court also instructed the jury pursuant to CALCRIM No. 370 that “[t]he 

People are not required to prove that the defendant had a motive to commit any of the 

crimes charged. In reaching your verdict you may, however, consider whether the 

defendant had a motive. [¶] Having a motive may be a factor tending to show that the 

 

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The court also instructed the jury pursuant to CALCRIM No. 1120 that to prove 

Scott guilty of continuous sexual abuse of a child under the age of 14, the prosecution 

“must prove that: [¶] . . . [¶] Two, the defendant engaged in three or more acts of 

substantial sexual conduct or lewd or lascivious conduct with the child; [¶] Three, three 

or more months passed between the first and last acts; [¶] And four, the child was under 

the age of 14 years at the time of the acts.” 
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defendant is guilty. Not having a motive may be a factor tending to show the defendant 

is not guilty.” 

Verdict and Sentencing

The jury convicted Scott of misdemeanor assault (§ 240), a lesser included offense 

of aggravated sexual assault of child seven to 14 years old (§ 269, subd. (a)(5)) (count 1)

and continuous sexual abuse of a child under 14, a felony (§ 288.5, subd. (a)) (count 3). 

The jury could not reach a verdict on forcible oral copulation (§ 288a, subd. (c)(2))

(count 2) and the prosecution dismissed that charge. The court stayed Scott’s sentence on 

count 1 and imposed the middle term of 12 years for count 3. 

DISCUSSION

In reviewing a claim of instructional error, we “consider the jury instructions as a 

whole, and not judge a single jury instruction in artificial isolation . . . .” (People v. 

Dieguez (2001) 89 Cal.App.4th 266, 276.) “When a claim is made that instructions are 

deficient, we must determine whether their meaning was objectionable as communicated 

to the jury. . . . The meaning of instructions is . . . determined under a . . . test of whether

there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light 

of the instructions given, the entire record of trial, and the arguments of counsel.” (Ibid.)

276.) We “ ‘ “assume that the jurors are intelligent persons and capable of understanding 

and correlating all jury instructions which are given.” [Citations].’ ‘Instructions should 

be interpreted, if possible, so as to support the judgment rather than defeat it if they are 

reasonably susceptible to such interpretation.’ ” (People v. Ramos (2008) 163 

Cal.App.4th 1082, 1088.) We review these claims notwithstanding Scott’s failure to 

object to the instructions in the trial court. (§ 1259; People v. Konow (2004) 32 Cal.4th 

995, 1024-1025.) 

I.

The Court Did Not Err by Instructing the Jury with CALCRIM No. 207

Section 288.5 prohibits the continuous sexual abuse of a child. It requires proof, 

among other thing, the defendant engaged in three or more acts of substantial sexual 

conduct or lewd and lascivious conduct with the child, and that the child was under 14 
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when the acts occurred. (§ 288.5, subd. (a); People v. Mejia (2007) 155 Cal.App.4th 86, 

93-94.) Scott contends the “‘reasonably close’ language” in CALCRIM No. 207

“undercut” his case and impermissibly lessened the state’s burden of proof because “the 

timing of the charged abuse was a critical part of the defense case.” According to Scott, 

the instruction allowed the jury to convict him of continuous sexual abuse based on 

conduct occurring after Doe’s 14th birthday. We disagree. 

“Ordinarily, the People need not plead the exact time of commission of an alleged 

offense. [Citation.] However, if the defense is alibi or . . . lack of opportunity to commit 

the offense, the exact time of commission becomes critically relevant to the maintenance 

of the defense. An instruction which deflects the jury’s attention from temporal detail 

may unconstitutionally impede the defense. The defendant is entitled as a matter of due 

process to have the time of commission of the offense fixed in order to demonstrate he 

was elsewhere or otherwise disenabled from its commission.” (People v. Barney (1983) 

143 Cal.App.3d 490, 497.) In other words, CALCRIM No. 207 should not be given 

“when the evidence demonstrates that the offense was committed at a specific time and 

place and the defendant has presented a defense of alibi or lack of opportunity . . . .” 

(Bench Notes to CALCRIM No. 207 (2014) p. 37.)

Here, the prosecution’s evidence did not point to a specific date for any of the 500 

times Scott molested Doe, and Scott did not offer an alibi defense. The prosecutor 

argued the abuse occurred over a multi-year period, and that Doe did not remember 

specific dates of the abuse because there were “too many times to remember.” As a 

result, the court properly instructed the jury pursuant to CALCRIM No. 207. (See People 

v. Wrigley (1968) 69 Cal.2d 149, 156-160; see also People v. Richardson (2008) 43 

Cal.4th 959, 1027-1028.) There was not — as Scott claims — a reasonable likelihood the 

jury misconstrued CALCRIM No. 207 to convict him of continuous sexual abuse based 

on conduct occurring after Doe turned 14. As noted, the instructions required the 

prosecution to prove Doe “was under the age of 14 years at the time of the acts.” 

(CALCRIM No. 1120.) No juror would have concluded acts occurring “reasonably 

close,” but after, the dates specified would suffice, particularly where the evidence at trial 
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demonstrated numerous acts of sexual abuse occurred well before Doe turned 14. The 

court did not error by instructing the jury with CALCRIM No. 207. 

Giving the instruction did not somehow interfere with Scott’s defense, nor did it 

deprive him of effective assistance of counsel. As a result, Scott’s due process claim

fails. (People v. Osband (1996) 13 Cal.4th 622, 675 [“[b]ecause there was no state law 

error, neither was there any predicate for a constitutional violation”].) Having reached 

this result, we need not address the parties’ arguments regarding prejudice. 

II.

The Court Did Not Err by Instructing the Jury with CALCRIM No. 370 

Scott argues the court reduced the prosecution’s burden of proof by instructing the 

jury pursuant to CALCRIM No. 370 that “[t]he People are not required to prove that the 

defendant had a motive to commit any of the crimes charged.” According to Scott,

motive is an element of continuous sexual abuse in violation of section 288.5 and 

instructing the jury pursuant to CALCRIM No. 370 that the prosecution “did not have to 

prove motive was fundamentally improper.” We are not persuaded. 

Scott has cited no authority holding motive is an element of continuous sexual 

abuse. Our high court has suggested otherwise: “ ‘Motive, intent, and malice . . . are 

separate and disparate mental states. The words are not synonyms. Their separate 

definitions were accurate and appropriate.’ [Citation.] Motive describes the reason a 

person chooses to commit a crime. The reason, however, is different from a required 

mental state such as intent or malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504

(Hillhouse).) Here, the jury instructions did not use “ ‘motive’ and ‘intent’ 

interchangeably, and therefore there is no reasonable likelihood the jury understood those 

terms to be synonymous.” (People v. Cash (2002) 28 Cal.4th 703, 739 (Cash).) 

Scott concedes several courts have rejected the argument that CALCRIM No. 370 

lessens the prosecution’s burden of proof. (People v. Mendoza (2011) 52 Cal.4th 1056, 

1094-1095 [discussing equivalent CALJIC No. 2.51 instruction]; People v. Fuentes

(2009) 171 Cal.App.4th 1133, 1139 (Fuentes).) For example, in Fuentes, the defendant 

argued CALCRIM No. 370 conflicted with the pattern instructions for criminal street 
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gang participation (§§ 186.22, subd. (a), (b)(1), 190.2, subd. (a)(22)) and lessened the 

prosecution’s burden of proof. (Fuentes, supra, 171 Cal.App.4th at p. 1139.) The 

Fuentes court rejected this argument and concluded “[a]n intent to further criminal gang 

activity is no more a ‘motive’ in legal terms than is any other specific intent. We do not 

call a premeditated murderer’s intent to kill a ‘motive,’ though his action is motivated by 

a desire to cause the victim’s death. Combined, the instructions here told the jury the 

prosecution must prove that Fuentes intended to further gang activity but need not show 

what motivated his wish to do so. This was not ambiguous and there is no reason to think 

the jury could not understand it. Fuentes claims the intent to further criminal gang 

activity should be deemed a motive, but he cites no authority for this position. There was 

no error.” (Fuentes, at p. 1140.) 

The Fuentes court’s rationale applies here. Like other courts, we decline Scott’s 

invitation to conclude Fuentes is wrongly decided and we reject his reliance on People v. 

Maurer (1995) 32 Cal.App.4th 1121, a case distinguished in Fuentes and by the 

California Supreme Court. (See Fuentes, supra, 171 Cal.App.4th at p. 1140; Hillhouse, 

supra, 27 Cal.4th at p. 504; Cash, supra, 28 Cal.4th at pp. 738-739.) We conclude the 

court did not err by instructing the jury with CALCRIM No. 370. Having reached this 

result, we need not address the parties’ arguments regarding prejudice. 

DISPOSITION

The judgment is affirmed.
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_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Bruiniers, J.

A139229