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Filed 8/4/14 P. v. Scott CA 1 /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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

____ _______________________________|
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 crime s took p lace on specific
date s , 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 crime s 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 )) (c ount 1)
, forcible oral cop ulation (§ 288a, subd. (c)(2) ) (count 2) and continuous se xual abuse of his daughter, a child under 14 (§ 288.5, subd. (a) ) ( count 3

. )
Trial
J ane Doe was born in March 1995. Scott is Doe’s father. Scott s exually 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 h er patern al great grandmother from age four to 14

. Scott moved into the house when Doe was four

. When Doe was seven years old , Scott bega n 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

— unsuccessf ully

— 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 u nder her underwear and forced her to masturbate him

. Around this time, Scott w as 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,

n ear the end of her freshman year in hi gh 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] . . . Dec ember of 2009.” Doe repeated the allegations to a police officer and to a counselor at Child Abuse Listening, Interviewing and Coordination Center (CALICO)

.3

Scott did not testify. The defense theory was Doe fabricated the allegations in part
because s he wanted to live with her mother. D efense 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 pol ice and to the
CALICO coun selor. In her closing argument, the prosecutor claime d 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 oc curred within [that] time. [¶] [T] here’s too many times t o 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 w ell before Doe
turned 14 : “ we know between the ages of 7 and 12 years old, many of the acts occurred.” Jury Instructions
P ursuant to CALCRIM No. 207 , the court instructed the jury : “ It is alleged that the
crime of aggravated sexual a ssault of a child und er the age of 14 occurred b etween March
28 , 2007 and March 27, 2009, the crime of f o rcible oral c opulation occurred between December 15, 2009 and January 2010, and that c ontinuous c hild s ex a buse continued
between March 2002 and March 2007. The People are not required to prove that the crime took place exactly on th at date but only that it happened reasonably close to those
dates. ” 2

T he court also instructed the jury pursuant to CALCRIM No. 370 that “[t]he People are not required to prove that the defen dant 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

2 The court also instructed the jury pursuant to CALCRIM N o. 1120 that to prove Scott guilty of continuous sexual abuse of a child under the age of 14, the prosecution “must prove that: [¶]

. . . [¶] Two, t he defendant engaged in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the child; [¶] Three, t hree or more months passed betw een the first and last acts; [¶] And four, t he child was under the age of 14 years at the time of the acts. ”4

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 y ears old (§ 269, subd. (a)(5)) (count 1)

an d 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 cop ulation (§ 288a, subd. (c)(2) ) (c ount 2) and the prosecution dismissed that charge. The co urt stayed Scott’s se ntence on

co unt 1 and imposed t he middle term of 12 years for c ount 3.
DISCUSSION In reviewing a claim of instructional error, we “c onsider the jury instructions as a whole, and not judge a single jury instruction i n artificial isolation . . . .” ( P eo ple 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 intelli gent 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 su ch 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, 102 4

- 1 025.)
I. The Cour t Did Not Err by Instructing the Jury with CALCRIM No. 207
Section 288.5 prohibits the con tinuous 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 lascivio us conduct with the child
, and that the child was under 145

when the acts occurred. (§ 288.5, subd. (a) ; People v. Mejia (2007) 155 Cal.App.4th 86,
9 3

- 94 .) Scott contends the “‘reasonably close’ langua g e ” in CALCRIM No. 207

“ undercut ” his case and impermi ssibly 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 allowe d 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 com mission 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 tha t the offense was committed at a specific time and place and the defendant has presented a defense of alibi or lack of opportunity

. . . . ” (Ben ch Notes to CALCRIM No. 207 (2014) p. 37

. ) Here, the prosecution ’ s evidence did not point to a specific date fo r 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 remembe r.” As a result, the court properly instructed the jury pursuant to CALCRIM No. 207 . ( See People

v. Wrigley ( 1968 ) 69 Cal.2d 149
, 15 6

- 1 60 ; see also People v. Richardson (2008) 43 Cal.4th 959, 102 7

- 1 02 8.) There was not

— as Scott claims

— a reasonable li kelihood 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 act s.” (CALCRIM No. 1120.) No juror would have concluded acts occurring “reasonably close,” but after, the dates specified would suffice, particularly where the evidence at trial6

demonstrated numerous acts of sexual abuse occur red well before Doe turned 14

. The
court did not error by instruct ing 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
fail s

. ( P eo

ple 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 Cou rt Did Not Err by Instructing the Jury with CALCRIM No. 370
Scott argue s 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 i s an element of continuous sexual abuse in violation of section 288.5 and instructing the jury pursuant to CALCRIM No. 37 0 that the prosecution “did not have to prove motive was fundamental ly improper

. ” We are not persuaded.
Scott has cited no authority holding m otive is an element of continuous sexual
abuse . O ur high court has suggested otherwise : “ ‘ Motive, intent, and malice . . . are separate and disparate mental states. The words a re 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 . Hillh ouse (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 ) .)
S cott concedes several courts have rejected the argument t hat CALCRIM No. 370 lessens the prosecution’ s burden of proof . ( People v. Mendoz a (2011) 52 Cal.4th 1056,
109 4

- 1 095 [discussing equivalent CALJIC No. 2.51 instructi on]; 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 instruction s for criminal street7

gang participation ( § § 186.22, subd. (a), ( b)(1) , 190.2, subd. (a)(22) ) and lesse ne d the prosecution’s burden of proof. ( Fuentes, supra, 171 Cal.App.4th at p. 1139.) The
Fuentes court rejected this argument an d 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 inten ded 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 motiv e, but he cites no authority for this position. There was

no error. ” ( Fuentes, at p. 114 0.)
The Fuentes court’s rationale applies here

. Like other courts, w e 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; Hi llhouse,

supra , 27 Cal.4th at p. 504 ; Cash, supra, 28 Cal.4th at pp. 738

- 739 .) We conc lude the court did not err by instructing the jury with CALCRIM No. 37 0 . Having reached this result, we need not address the parties’ arguments regarding prejudice

. DISPOSITION The judgment i s affirmed.8 _________________________ J ones, P.J.

We concur:

_________________________ Simons, J.

_________________________ Bruiniers, J.

A139229